MIRONOV proti Rusku

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22625/02
by Andrey Nikolayevich MIRONOV
against Russia

The European Court of Human Rights (First Section Section), sitting on 5 October 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 23 May 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrey Nikolayevich Mironov, is a national of Moldova, who was born in 1969 and lives in Svetliy village, Moldova. He is currently serving a sentence in prison UY-400/5 in the town of Donskoy (Tula Region) Russia. He is represented by Mr G. Nedov, a lawyer practising in Moldova. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Criminal proceedings against the applicant and alleged ill-treatment by police officers

On 16 September 1998 criminal proceedings were instituted against the applicant in connection with the robbery of Mr B.

In his initial submissions the applicant stated that he had been arrested on 16 September 1998. After the application was notified to the respondent Government he said that he had in fact been arrested on 29 August 1998. He further alleged that he had been beaten by police officers, both on his arrest and on 19 September 1998. On 22 September 1998 he had been taken by car by two police officers, purportedly in connection with the investigation, to a forest where he was taken out of the car, hung by handcuffs from a tree and given a beating. The officers had then put a plastic bag over his head, removing it only when he started to suffocate, and forced him to confess to the offence. Then he had been given a further beating and had passed out. When he regained consciousness, he found himself in the boot of the car which was approaching the remand prison. The applicant submitted that the police officers had ruptured one of his kidneys and broken five ribs and his nose.

The Government submitted that on 18 September 1998 the applicant had been placed in a temporary detention centre pursuant to a warrant for his administrative arrest. He had been released on 24 September 1998 but rearrested the same day on suspicion of robbery.

On the aforementioned date the applicant had refused assistance from a lawyer and an interpreter, saying that he had perfect command of Russian. He was subsequently charged with robbery, it being alleged that he and persons unknown had robbed Mr B. The charges were subsequently amended to read: burglary of Ms N.’s home between 30 June and 2 July 1998, robbery of Mr A. on 20 August 1998, burglary of Mr S.’s and Mr B.’s home between 31 August and 1 September 1998 and robbery of Mr R., Mr M., Mr and Mrs L., Mr and Mrs M.-y., Mr B. and Mr S. on 16 September 1998.

On 27 September 1998 detention as a measure of restraint was applied to the applicant. He stated that he received a further beating from police officers on that date.

On 29 September 1998, an application by the applicant for free legal aid was granted and the investigator requested the Naro-Fominsk Legal-Advice Office to provide a lawyer to assist the applicant.

On 2 October 1998 Advocate B. was assigned to act for the applicant, but the applicant refused his assistance, saying that he was a Moldovan national, and wished to be represented by a Consul from the Moldovan Embassy.

By telephone on 6 October 1998 and in writing on 16 October 1998 the investigator informed the Consul of Moldova in Russia of the institution of criminal proceedings against the applicant and his wish to meet the Consul.

On 21 October 1998 the applicant complained about having been ill-treated by the police officers. The complaint was received by the Prosecutor’s Office five days later.

On 22 October 1998 the applicant again refused Advocate B.’s assistance and asked for an advocate and an interpreter to be provided by the Moldovan Embassy in Russia. He said that he had no grievance against Advocate B. The request was transmitted to the Embassy.

On 23 October 1998 the Moldovan Embassy replied that the consular service of the Embassy could only assist the applicant in negotiations concerning legal assistance but was unable to provide an advocate.

On the same date the investigator again requested the Naro-Fominsk Legal Advice Office to provide a lawyer to assist the applicant. Advocate B. was reassigned to the case and assisted the applicant throughout the preliminary investigation.

During a medical examination in October 1998 the applicant complained about pain in his groin which he ascribed to the beating he said he had received in the temporary detention centre a month before. The doctor stated that owing to the time that had elapsed since the alleged assault no traces of injury could be found.

At an identification parade on an unspecified date, the applicant was identified by the victims. They also identified their belongings among objects that had been seized earlier at the applicant’s home.

On 26 October 1998 the preliminary investigation was concluded.

The applicant said that he was not given access to the case file.

The Government contended that on 26 October 1998 the applicant was notified of the conclusion of the preliminary investigation and provided with the case file for perusal. The applicant had refused to consult it and the documents had been read out to him by the investigator. The applicant’s lawyer had studied the case file personally.

On 4 November 1998 the bill of indictment was drawn up and the case file transmitted to court.

On 20 November 1998 the Naro-Fominsk Town Court remitted the case for additional investigation.

On 4 December 1998 the Prosecutor’s Office refused to institute criminal proceedings having regard to the applicant’s complaint of 21 October 1998 on the ground that there was no indication of a crime having been committed. According to the Government, the applicant was informed of the decision five days later.

On 9 December 1998 the investigator accepted the case for additional investigation and extended the term of the applicant’s detention for one month.

In a letter of 17 December 1998 the Naro-Fominsk Deputy Prosecutor informed the applicant that an inquiry had been conducted following his complaint but that it had been decided not to bring criminal proceedings against the police officers as there was no corpus delicti. It appears that the complaint of 21 October 1998 was referred to in the letter.

On 28 December 1998 the term of the applicant’s detention was extended for 3 months and 16 days.

On 8 February 1999 the investigator informed the Consul of Moldova in Russia by telephone of the applicant’s request to be provided with a lawyer by the Embassy. The Consul stated that they could neither provide the applicant with a lawyer nor organise a meeting with an Embassy official.

On 9 February 1999 an interpreter, K., was appointed to assist the applicant.

On 10 February 1999 the applicant was notified of the conclusion of the preliminary investigation. The documents in the case file were read out to him by the interpreter.

On 17 February 1999 a new bill of indictment was drawn up and the case file returned to the court. The date of the first hearing was fixed for 12 March 1999. The applicant stated that he had not received a copy of the bill of indictment in either Russian or Moldovan.

The Government submitted that a translation of the bill of indictment into Moldovan had been served on the applicant on 24 February 1999.

On 12 March 1999 the Naro-Fominsk Town Court postponed the hearing to 7 April 1999 on account of the failure of the victims, a witness and the interpreter to appear and the need to provide the applicant with legal assistance. It would appear that all the victims apart from Mr A. were Moldovan nationals and not in Russia at the relevant time.

On 7 April 1999 the hearing was postponed to 7 May 1999 on account of the victims’ failure to appear. The court issued witness summonses for the next hearing.

On 7 May 1999 the applicant asked for Advocate B. to be replaced and for a lawyer and an interpreter to be provided by the Moldovan Embassy. Advocate B. was released from acting in the proceedings. The hearing was adjourned to 16 July 1999 on account of the victims’ failure to appear and the applicant’s refusal to give oral evidence. The court issued further summonses in respect of all the witnesses.

On 16 July 1999 the hearing was postponed to 30 July 1999 on account of the witnesses’ and interpreter’s absence and a failure to bring the applicant to the hearing.

On 30 July 1999 the hearing was again postponed on account of the interpreter’s absence and a failure to bring the applicant to the hearing. The new hearing was fixed for 16 August 1999.

On 16 August 1999 the hearing was adjourned to 16 September 1999 on account of the victims’ and interpreter’s failure to appear. On 16 September, 12 October, 19 November and 10 December 1999 the hearing was adjourned on account of the victims’ failure to appear.

On 28 December 1999 the hearing was adjourned to 20 January 2000 on account of the victims’ failure to appear or to respond to the court’s summons.

It appears that on 20 January 2000 the hearing was adjourned to 7 February 2000.

On 7 February 2000 the hearing was adjourned to 1 March 2000 on account of the victims’ failure to appear.

The next hearing took place on 2 March 2000. It was adjourned because the applicant said that he was unable to study the case file owing to illness.

On 23 March 2000 the Narofominskiy Town Court sought information from the Moldovan police about the witnesses’ whereabouts. No reply was received.

In March 2000 Advocate E. and an interpreter, B., were appointed to assist the applicant. The applicant stated that he was not satisfied with Advocate E. The advocate’s office informed the court that they could not provide another lawyer. On 5 April 2000 the applicant requested a meeting with Advocate E. in order to discuss his defence. The court again appointed Advocate E. to assist the applicant in the proceedings and the applicant did not challenge this appointment before the court.

On 14 April 2000 the applicant studied the case file with the assistance of interpreter B.

At the hearings on 21, 25 and 26 April 2000 the applicant was assisted by Advocate E., who helped him with various procedural applications and examined the witnesses. The applicant was questioned by the court, gave evidence and expressed his views on procedural matters. One of the victims (Mr A.), a person who was present at the identification parade (Mr K.), and the investigator, V., attended the hearing as witnesses. The court then asked the parties whether they had any objections to the statements of the victims who were not present at the hearing being read out. Despite objections from the applicant and Advocate E., the court ordered that the statements be read out.

On 26 April 2000 the Naro-Fominsk Town Court convicted the applicant of robbery and sentenced him to 12 years’ imprisonment and ordered the confiscation of property belonging to him. It found him guilty of the burglary of Ms N.’s home between 30 June and 2 July 1998, the robbery of Mr A. on 20 August 1998, the burglary of Mr S.’s and Mr B.’s home between 31 August and 1 September 1998 and the robbery of Mr R., Mr M., Mr and Mrs L., Mr and Mrs M.-y., Mr B. and Mr S. on 16 September 1998. It relied in its judgment on the statements of the witnesses present at the hearing, statements of other witnesses taken during the preliminary investigation, the record of the identification parade, and real evidence, including objects that had been seized from the applicant which had been identified by the victims as belonging to them. The Town Court also found that the applicant had not been subjected to ill-treatment.

The applicant alleged that although he had been initially provided with a copy of the judgment, prison officers had forcibly taken it from him saying that his lawyers would be able to appeal against it anyway.

The Government submitted that on 27 April 2000 a copy of the judgment in Russian had been served on the applicant. Its receipt had been acknowledged by the applicant’s signature. On 16 June 2000 a copy of the judgment and of the transcript of the hearing translated into Moldovan were served on the applicant, who refused to accept service. On an unspecified date the transcript of the hearing translated into Moldovan was again served on the applicant but he again refused to accept service.

The applicant appealed, inter alia, on the grounds that the rights of the defence had been violated, that he had not been provided with an interpreter and that his applications to examine the witnesses had been rejected. Advocate E. assisted the applicant in the preparation of his appeal.

On an unspecified date the case file was transmitted to the appeal court.

The Government submitted that on 3 May 2000 the applicant had applied for assistance from Advocate S. to study the case file. In August-September 2000 the case was sent back to the trial court in order to enable the applicant to study the case file. On 15 November 2000, when Advocate E. and an interpreter arrived to assist the applicant, he refused to look at the case file and applied for assistance from Advocate S., the Consul of the Moldovan Embassy in Russia and a representative of the Presidential Commission for Human Rights. On 20 November 2000 his application for assistance from Advocate S. was dismissed on the grounds that the court had no information on the latter’s whereabouts and the applicant had failed to indicate his address.

On 11 January 2002 the Moscow Regional Court upheld the judgment. The applicant does not appear to have been assisted by a lawyer at the hearing of the appeal, but a representative of the Moldovan Consulate was present.

The applicant alleged that he had not been served with the judgment on appeal.

The Government contended that a copy of the judgment on appeal had been served on him.

On 21 June 2002 the Presidium of the Moscow Regional Court quashed the appeal judgment of 11 January 2002 following an application for supervisory review by the Prosecutor of the Moscow Region and remitted the case for re-examination. The Presidium stated, inter alia:

“Having heard... [the applicant], who stated that he did not require a lawyer at the hearing before the Presidium... and concurred with the grounds set out in the [application for supervisory review] for reversing the judgment and remitting the case for a fresh examination by the appeal court, the Presidium... grants the application.

...

The case file shows that [Mr] Mironov is a national of the Republic of Moldova. Accordingly, following an application by the [applicant] an interpreter participated in the preliminary investigation and attended the judicial hearing.

However, in breach of [the legislation] [the appeal court] failed to provide... an interpreter, which significantly violated the [applicant]’s rights.

Furthermore... the appeal court... failed to address the arguments [set out in the applicant’s appeal] concerning the violation of the rights of the defence ...

Moreover, the judgment on appeal does not indicate whether the [applicant] took part in the consideration of the case on appeal or what explanations he gave.”

On 24 September 2002 the Moscow Regional Court upheld the judgment of 26 April 2000. It found, inter alia:

“During the preliminary investigation and at the trial [Mr] Mironov was provided with... [an] advocate and [an] interpreter.

These requirements of the rules of criminal procedure were complied with by the ... Moscow Regional Court at the hearing of the appeal.

The case file shows that the court fully examined all [Mr] Mironov’s statements.”

On 24 June 2004 the decision of 4 December 1998 not to institute criminal proceedings concerning the applicant’s complaint of ill-treatment was quashed on the ground that the investigation had not been complete.

On 26 June 2004 the Naro-Fominsk Deputy Prosecutor again refused to institute criminal proceedings against the police officials on the ground that there was no indication of a crime having been committed.

On 2 July 2004 the Moscow Region Deputy Prosecutor also refused to institute criminal proceedings on the same ground.

2. Conditions of detention and alleged ill-treatment by police officers

From the date of his arrest until 9 October 1998 the applicant was held in the temporary detention centre in Naro-Fominsk.

Between 9 October 1998 and 17 August 2000 he was held in remand prison IZ-49/4 in Mozhaysk.

Between 17 August and 4 September 2000 he was held in remand prison IZ-50/9 (Moscow Region).

Between 4 September 2000 and 15 February 2002 the applicant was again held in remand prison IZ-49/4 in Mozhaysk.

Between 16 and 27 February 2002 he was held in remand prison IZ-50/4 in Mozhaysk.

Between 28 February and 23 May 2002 he was held in prison UY-400/5 in the town Donskoy (Tula Region).

Between 24 and 26 May 2002 he was held in remand prison IZ-71/1 in Tula.

Between 27 May and 5 October 2002 the applicant returned to remand prison IZ-50/9.

Between 6 and 16 October 2002 he was held in remand prison IZ-71/1 in Tula.

The applicant alleged that in remand prison IZ-50/9 there had on average been 60-70 inmates in a cell designed for 10-15. There were 10 beds in the cell and inmates slept in five or six shifts. They had been taken for a walk outside three or four times a month for 35-40 minutes at a time. In the bathroom there were 10-15 water jugs and the time allowed for a bath had been 20-30 minutes for 60 inmates. There was an “improvised” toilet in the cell around which the inmates slept on or under the beds. The cell was overrun with bed-bugs, cockroaches, lice, rats and mice, which bit the prisoners and spread disease. Some prisoners in the cell suffered from scabies and pediculosis. The cell walls were damp most of the time because of condensation. Medical aid was provided only when a prisoner could no longer walk unaided. There was nowhere to sit in the cell and not even enough standing room.

The Government stated that between 27 May and 20 September 2002 the applicant had been in cell no. 3, which measured 24.3 square metres, held 14 to 26 inmates simultaneously and had 9 beds. Between 21 and 24 September 2002 the applicant was in cell no. 5, which measured 14.58 sq. m, held 7 to 10 inmates and had 5 beds. From 25 September 2002 until his transfer to prison UY-400/5 the applicant had been held in cell no. 70, which measured 19.65 sq. m, held 2 to 4 inmates and had 4 beds. At the same time the Government submitted that between 9 and 25 September 2002 the applicant was held in cell no. 8, which measured 31.92 sq. m and held 42 inmates. However, in the certificate issued by remand prison IZ-50/9 on 6 July 2004 it is stated that the applicant had been held in cell no. 8 between 9 January and 25 February 2002, and the number of inmates could not be established because the relevant documents had been destroyed.

The applicant alleged that on 23 June 2002 several police officers had entered the cell where he was being held in remand prison IZ-50/9 and administered a beating to him and two of his cellmates. On 24 June 2002 he had lodged a complaint with the prison administration about the beating, but it had not been examined. He said that he was not examined by a doctor until a month later, by which time the bruises had already healed. It had not been possible to ascertain whether he had sustained any fractures as no
X-rays had been taken. According to the applicant, on 25 June 2002 the Moscow Region Deputy Prosecutor visited the prison and asked the inmates about the events and the way the prison administration had handled the inspection. However, since the inmates had not been informed of any such inspection, they only gave their account of the events of 23 June 2002, when suspects held in various cells of the remand prison had been beaten by police officers and had sustained injuries.

The Government submitted that between 26 and 28 June 2002 the applicant had undergone a medical examination, which had not revealed any injuries. He had not made any complaints about the alleged ill-treatment.

On 26 June 2002 the Prosecutor’s Office of the Moscow Region instituted criminal proceedings concerning the ill-treatment of detainees in remand prison IZ-50/9 on 23 June 2002.

On 18 July 2002 the applicant had a medical examination. He told the doctor that he had pains in his back and groin as a result of the beating he had received on 23 June 2002. Upon a visual check the doctor found no trace of injury or oedema.

On 17 October 2002 the applicant was moved to prison UY-400/5 in the town Donskoy (Tula Region).

On 10 November 2002 the Moscow Region Prosecutor’s Office discontinued the criminal proceedings that had been instituted as a result of the events of 23 June 2002. The order read as follows:

“The present criminal proceedings were instituted on 26 June 2002 [and concerned] the abuse of authority with violence and the use of special instruments by officers from units of the Ministry of Justice penitentiary department of the Moscow Region. The criminal proceedings were instituted on the basis of a complaint lodged with the regional prosecutor’s office on 24 June 2002 by relatives of the detainees concerning [the] beating [they received] in facility IZ-50/9 (Moscow Region). The ... injuries to the detainees ... were confirmed in the course of the inquiry. The investigation has shown that between 10 p.m. and 12 noon on 23 June 2002 in facility IZ-50/9 (Moscow Region) officers from the facility and three officers from the special forces unit “Fakel” (A. Yu. Ivanov, Yu. N. Polunin and S. B.. Serdechniy) checked the detainees’ presence in the cells of the first [building]. At approximately 1_.30 [the hour is not fully legible] the duty assistant to the governor of the remand prison ordered the duty medical attendant to go to the first [building] to give medical assistance to detainees. Upon her arrival, the duty medical attendant found injured detainees in cell no. 1_ [the number is not fully legible] who complained that during the morning roll-call they had been beaten by masked officers. In cell no. 20 a detainee, Mr I., had a fracture of his ... left arm, other detainees complained of pains in the chest.

According to the findings set out in the forensic medical examination reports the detainee Mr I. suffered moderately serious damage to his health. The other [fourteen] detainees had received blows, which were not subject to medical assessment. In the course of the preliminary investigation it did not appear possible to establish who was responsible for which injuries.

Having regard to the fact that on 5 November 2002 the Moscow Region Prosecutor’s Office received instructions from the Prosecutor General of Russia to discontinue the present criminal proceedings ... [the investigator] of the Moscow Region Prosecutor’s Office orders the [present] criminal proceedings against [S. B.] Serdechniy ... , [A. Yu.] Ivanov ... and [Yu. N.] Polunin to be discontinued...”

The applicant was not named in the order as being among the injured detainees.

On 2 July 2004 the Moscow Region Deputy Prosecutor decided not to institute criminal proceedings in respect of the applicant’s complaint concerning the alleged ill-treatment on 23 June 2002. The order read, in so far as relevant, as follows:

“...[A. N.] Mironov filed a complaint with the Prosecutor’s Office of the Moscow Region stating that on 23 June 2002, during his detention in facility IZ-50/9, he had been beaten by police officers of the special unit.

In the course of the investigation it was established that between 27 May and 5 October 2002 [A. N.] Mironov was held in facility IZ-50/9, in particular, between 27 May and 27 September 2002 in cell no. 3. Since facility IZ-50/9 was understaffed, officers from the unit “Fakel” of the Ministry of Justice penitentiary department of the Moscow Region participated in security measures [режимные мероприятия] on 23 June 2003. They were wearing uniform similar to that of the police special unit.

On 24 June 2002 relatives of the detainees held in facility IZ-50/9 applied to the Prosecutor’s Office of the Moscow Region. They stated that some of the detainees had been beaten by the police special unit during the search conducted on 23 June 2002. [A. N.] Mironov was not mentioned in the application.

The Prosecutor’s Office of the Moscow Region conducted an investigation into the events referred to in the application of 24 June 2002. In the course of the investigation all the detainees that had filed the complaints underwent medical examination. The detainees held in every cell of facility IZ-50/9 were questioned. [A. N.] Mironov did not make any complaints concerning the actions of the officers of the penitentiary system. In the course of the investigation it was established that on 23-24 June 2002 41 detainees applied for medical aid on account of having been beaten by officers of the penitentiary system who conducted the search. Neither [A. N.] Mironov nor other detainees held in cell no. 3 were among them.

...On 26 June 2002 the Prosecutor’s Office of the Moscow Region instituted criminal proceedings. In the course of the investigation all the detainees that were mentioned in the application and applied for medical aid as well as witnesses were questioned. 22 medical examinations were conducted. [A. N.] Mironov was neither a witness, nor was he recognised a victim.

Officers of ...the unit “Fakel” [A. Yu.] Ivanov, [Yu. N.] Polunin and [S. B.] Serdechniy who participated in the security measures on 23 June 2002 in building no. 1 of facility IZ-50/9 where [A. N.] Mironov had been held denied having beaten him.

[A. N.] Mironov applied for medical aid only on 18 July 2002. He complained about the pain in his loin and explained it by the beating on 23 June 2002. However, according to his medical file the doctor found no traces of injuries, no bruises ... and found that his state of health was satisfactory.

Since facility IZ-50/9 destroyed the cards [pertaining to the detainees held in] 2002 according to the established procedure, it is not possible to find and to question persons who had been held in cell no. 3 together with [A. N.] Mironov on 23 June 2002.

Therefore, the investigation into [A. N.] Mironov’s complaint showed that he had not made any complaints directly after the date of the alleged beating, in the course of the Prosecutor’s investigation conducted on 24 June 2002 he was not recognised as a victim of unlawful actions of the officers of the penitentiary system, and he did not participate as a witness in the instituted criminal proceedings either.

Having regard [to the foregoing] ... the institution of criminal proceedings following the complaint of [A. N.] Mironov should be refused...”.

On 20 December 2005 the Deputy Prosecutor General upheld the decision of 2 July 2004.

COMPLAINTS

1. The applicant complained under Article 5 §§ 3 and 4 and under Article 6 § 3 (c) of the Convention that he was not brought promptly before an officer authorised to exercise judicial power after his arrest. He also complained that his detention had not been duly authorised by competent authorities.

2. The applicant complained under Article 3 of the Convention that he had been beaten by police officers during his arrest and during his interrogation on 19, 22 and 27 September 1998 and on 23 June 2002 in remand prison IZ-50/9 (Moscow Region).

3. The applicant further relied on Article 3 of the Convention to complain about the conditions of his detention in remand prison IZ-50/9 (Moscow Region) between 27 May and 5 October 2002.

4. He complained under Article 6 § 1 of the Convention that his rights to the assistance of an interpreter and a lawyer had not been respected. In particular, he alleged that during the preliminary investigation and at the hearings in the trial and appeal courts he had not been provided with an interpreter; that during the preliminary investigation he had not been provided with a lawyer; that the trial court had failed to notify counsel of his choosing about the hearing and instead had assigned him an advocate who had not properly represented his interests; that at the appeal hearing he had not been provided with legal assistance. He further complained that defence witnesses who would have been able to confirm his alibi had not been examined at the hearing and that instead of examining witnesses for the prosecution the judge had only questioned the investigator. Relying on the same Article the applicant complained that the bill of indictment had not been served on him and that the investigator had forged his signature in order to acknowledge receipt of a copy; that he had not been provided with copies of either the sentence of 26 April 2000 or the judgment on appeal of 11 January 2002; that he had not had an opportunity to study the case file and that a large number of documents in the case file had been destroyed and falsified by the judge; that he had not had adequate facilities in remand prison IZ-50/9 for the preparation of his defence and that his right to meet with his lawyer had been restricted; that during the trial he had not been given an opportunity to make representations in his defence; that the courts had erred in findings of fact and that the criminal proceedings had been unreasonably long.

5. The applicant complained that while in custody he had not been allowed to see his family and that his right to correspondence had been restricted.

THE LAW

1. The Government submitted that in his application the applicant had used abusive language in respect of the Russian authorities as a whole and of the Russian judicial branch and law-enforcement authorities in particular. They contended that this amounted to an abuse of the right of application within the meaning of Article 35 § 3.

Article 35 § 3, in so far as relevant, reads as follows:

“The Court shall declare inadmissible any individual application submitted under Article 34 which it considers ... an abuse of the right of application.”

The Court first notes that the Government did not specify the instances where, in their view, the applicant had used abusive language. In any event, while the use of offensive language in proceedings before the Court is undoubtedly inappropriate, the Court considers that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see Akdivar and Others v. Turkey, judgment of
16 September 1996, Reports of Judgments and Decisions 1996‑IV,
§§ 53-54; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000‑X).

Having regard to the statements made by the applicant in the present case and to the language used by him, the Court does not consider that they amount to an abuse of the right of petition. Accordingly the Government’s objection is dismissed.

2. The applicant complained that after his arrest he was not brought promptly before an officer authorised to exercise judicial power and that his detention was not duly authorised by competent authorities. He relied on Article 6 § 3 (c) and Article 5 §§ 3 and 4 of the Convention. The Court will examine this complaint under Article 5 of the Convention.

In so far as it is relevant, Article 5 provides:

““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:

...

(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;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. 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.

...”

However, the Court is not required to decide whether or not the facts submitted by the applicant in this part of the application disclose any appearance of a violation of the Convention as, in accordance with Article 35 § 1 of the Convention, it finds that this part of the application was submitted out of time. The Court notes that the date of the “final decision” for the purpose of Article 35 § 1 of the Convention in connection with a period of pre-trial detention is the date on which the charge is determined by a court at first instance, not the date on which the conviction becomes effective (see Daktaras v. Lithuania, no. 42095/98, decision of 11 January 2000). The applicant was convicted at first instance on 26 April 2000 and, consequently, the six-months time-limit under Article 35 § 1 in respect of this part of the application, started to run on that date. However, the application was not lodged until 23 May 2002, more than six months later.

It follows that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.

3. The applicant complained under Article 3 of the Convention that he had been ill-treated by police officers on his arrest and also on 19, 22 and 27 September 1998. He also complained that he had received a beating in remand prison IZ-50/9 (Moscow Region) on 23 June 2002.

Article 3 reads as follows:

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

The Government submitted that the applicant had not been removed from the detention facility on either 19 or 22 September 1998. There was no evidence of any unlawful acts against the applicant by the detention facility’s officers. Since he had neither indicated the names of the officers who had allegedly mistreated him, nor provided any other relevant evidence, it was not possible to verify whether the allegations were true. The Government further maintained that the applicant had not complained to the administration of remand prison IZ-50/9 about the injuries he had allegedly sustained on 23 June 2002. On 26-28 June 2002 he had been examined by a doctor, but had not mentioned the alleged ill-treatment and no injuries had been found. A decision not to institute criminal proceedings in respect of the facts complained of had been taken on 2 July 2004, and on 20 December 2005 the Deputy Prosecutor General had found that decision to be lawful. The Government concluded that the applicant’s allegations of ill-treatment were unfounded.

The applicant submitted that his complaint concerned police and investigative officers, not officers from the detention facility. He had given their names: Mr V., Mr A. and their subordinates. Evidence of the ill-treatment could be found in his medical records. As for the events of 23 June 2002, the applicant submitted that dozens of detainees had been officially acknowledged to have been victims and the incident had been covered by the media. The decisions not to institute criminal proceedings were just a formal response, not an attempt to conduct an investigation in good faith, since they were issued several years after the events complained of.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The applicant complained under Article 3 of the Convention about the conditions of detention in remand prison IZ-50/9 (Moscow Region) between 27 May and 5 October 2002.

The Government accepted that in 1998-2002 Russian remand prisons, including remand prison IZ-50/9, were overcrowded. However, by April 2003 the number of detainees had decreased and prison conditions were compatible with the provisions of the Convention. They further maintained that the applicant had been provided with a bed and bedding in accordance with the statutory requirements. All cells in remand prison
IZ-50/9 had been equipped with a sewerage system. The lavatory pan had been placed in an area separated from the rest of the cell by a one-metre-high partition. The wash basin had been placed outside that area. The Government also enclosed a letter from the Ministry of Justice stating that in 2003-2004 cells nos. 3, 5 and 70 had been renovated and, therefore, it was not possible to provide information about their condition in 2002. According to the letter, the above information concerning the sewerage system and the position of the lavatory pan related to the period after the renovation works were carried out. The Government further submitted that the condition of the cells and bathrooms was satisfactory. Repairs had been carried out as required. The inmates were permitted a bath once every seven days and a walk of not less than one hour per day in compliance with internal regulations. The supply of medicines had also been satisfactory. There were no inmates infected with scabies or pediculosis in remand prison IZ-50/9 in 2002.

The applicant contested the Government’s submissions. He stated that they were vague and contradictory. In particular, he pointed out that the Government themselves admitted that in 1998-2002 remand prison IZ-50/9 had been overcrowded and, therefore, he could not possibly have been provided with an individual bed, but had had to sleep in shifts with other inmates on shared bedding. For the rest of the time the inmates had had to stand since there was not enough room in the cell. He further contended that he had not been provided with either bedding or other personal belongings. If he had been, the Government would have been able to produce copies of the prison register with an indication of the items the applicant had been provided with and his signature acknowledging receipt. Likewise, the Government had provided no proof that he had been able to take a bath regularly.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. The applicant complained under Article 6 of the Convention that a) he had not been provided with an interpreter either at the preliminary investigation, or at the first-instance and appeal hearings. He further complained that b) he had not been provided with a lawyer at the preliminary investigation, that the trial court had not notified counsel of his choice about the hearing and had assigned him an advocate who had not properly represented his interests, and that he had had no legal assistance whatsoever at the hearing of the appeal. Also relying on Article 6 of the Convention the applicant complained that c) witnesses for the defence had not been examined at the hearing and that the judge had only questioned the investigator instead of examining prosecution witnesses. He further complained that d) he had not had adequate time and facilities to prepare his defence since the bill of indictment had not been served on him and his signature acknowledging receipt of a copy had been forged by the investigator; since he had not been provided with copies of either the sentence of 26 April 2000 or the judgment on appeal of 11 January 2002; since he had not been given an opportunity to study the case file; since a large number of documents in the case file had been destroyed and falsified by the judge; and since in remand prison IZ-50/9 his right to meet with his lawyer had been restricted. He alleged furthermore that e) during the trial he had not been given an opportunity to make representations in his defence, and that the courts had erred in findings of fact. Finally, he complained that f) the criminal proceedings had been unreasonably long.

In so far as relevant, Article 6 provides:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

...

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

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(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;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

(a) Assistance of an interpreter

1. The parties’ submissions

The Government submitted that on 24 September 1998 the applicant had stated in writing that he had perfect command of Russian and did not need an interpreter. Later he had requested an interpreter to be provided by the Moldovan Embassy in Russia. His requests had been forwarded to the Embassy, which advised the applicant that it was impossible to comply with them. On 9 February 1999 the investigator appointed an interpreter, K., who assisted the applicant throughout the preliminary investigation. After the case file had been transmitted to the court the applicant was assisted by another interpreter, B. On 30 July 2002, after the judgment on appeal of 11 January 2002 had been quashed under the supervisory-review procedure, the Moscow Regional Court sent notification of the date set for the new appeal hearing to the applicant’s lawyers, an interpreter and the Moldovan Embassy in Russia. The Government concluded that this aspect of the complaint was manifestly ill-founded.

The applicant contested the Government’s submissions generally and said that he had not been assisted by an interpreter at either of the appeal hearings on 11 January and 24 September 2002.

2. The Court’s assessment

The Court first reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings as set forth in paragraph 1 of the same Article. Accordingly, the applicant’s complaint will be examined under these provisions taken together (see, among other authorities, Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 756, § 52).

The Court reiterates at the outset that, read as a whole, Article 6 of the Convention guarantees the right of an accused to participate effectively in a criminal trial. In general this includes not only the right to be present, but also to hear and follow the proceedings. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained in sub-paragraphs (c) and (e) of Article 6 § 3 (see, among other authorities, Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282-A, pp. 10–11, § 26).

The Court notes that on 24 September 1998 the applicant waived his right to assistance from an interpreter. Later he requested the provision of an interpreter by the Embassy of the Republic of Moldova in the Russian Federation. The Russian authorities forwarded his requests to the Embassy, which replied that they could not be fulfilled. The domestic authorities then provided the applicant with an interpreter, K., who was appointed on 9 February 1999 and assisted him during the preliminary investigation, and with another interpreter, B., who was appointed in March 2000 and assisted him during the proceedings before the trial court. The applicant was therefore assisted by an interpreter throughout the preliminary investigation and the trial, as is also confirmed by the findings of the Moscow Regional Court in the appeal judgment of 24 September 2002.

As regards the failure to provide the applicant with an interpreter at the appeal hearing of 11 January 2002, the Court notes that on 21 June 2002 the Presidium of the Moscow Regional Court reversed the appeal judgment and remitted the case for re-examination. As for the alleged failure to provide the applicant with an interpreter at the appeal hearing of 24 September 2002, it is stated in the appeal judgment that the relevant requirements of the rules of criminal procedure had been complied with. The applicant has presented no evidence to suggest otherwise. Therefore, the Court finds no indication of a violation of the applicant’s rights under Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (e).

(b) Right to legal assistance of own choosing

1. The parties’ submissions

The Government submitted that on 24 September 1998 the applicant had refused assistance from a lawyer. However, following his subsequent request for legal assistance, on 29 September 1998 the investigator had granted him free legal aid and requested the Naro-Fominsk Legal-Advice Office to provide a lawyer to assist him. On 2 October 1998 the applicant was assigned Advocate B., whose assistance he refused without specifying any grounds. He requested a lawyer to be provided by the Moldovan Embassy in Russia. His requests were forwarded to the Embassy, which advised the applicant that it was unable to grant them. The Government maintained that Advocate B. had attended the court hearing of 7 May 1999 to assist the applicant; however, he had been released from acting when the applicant had declined his assistance and again asked the Moldovan Embassy to provide a lawyer and an interpreter. In March 2000 Advocate E. and an interpreter, B., were assigned to the applicant. The applicant refused assistance from Advocate E., who was reassigned to the case after the Legal-Advice Office had informed the court that they could not provide another lawyer. The applicant did not seek her replacement at the court hearings and Advocate E. assisted him efficiently throughout the remainder of the proceedings at first instance. After his conviction at first instance the applicant applied for assistance from Advocate S. His application was dismissed because the court did not have any information about S.’s whereabouts and the applicant had failed to indicate his address. After the appeal court’s judgment of 11 January 2002 had been quashed under the supervisory-review procedure, the Moscow Regional Court sent notification on 30 July 2002 of the new date fixed for the hearing of the appeal to the applicant’s counsel, an interpreter and the Moldovan Embassy in Russia. The Government concluded that this aspect of the complaint was manifestly ill-founded.

The applicant submitted that he had refused assistance from Advocate B. and later Advocate E. because they had failed to defend his interests properly. He further contended that Advocate E. had not assisted him to prepare his appeal or attended either of the appeal hearings. He said that he had not been provided with any legal assistance at the appeal hearing on
24 September 2002.

2. The Court’s assessment

The Court reiterates that Article 6 § 3 (c) entitles an accused to be defended by counsel “of his own choosing”. Notwithstanding the importance of a relationship of confidence between lawyer and client, the right to choose one’s own counsel cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned. When appointing defence counsel the national courts must certainly have regard to the defendant’s wishes. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Croissant v. Germany, judgment of 25 September 1992, Series A no. 237-B., § 29).

The Court notes that on 24 September 1998 the applicant waived his right to legal assistance. However, he subsequently requested and was granted free legal aid. He was accordingly assigned Advocate B. from the Naro-Fominsk Legal-Advice Office, whose assistance he later refused. Although the applicant argued before the Court that he had done so because Advocate B. had failed to defend his interests properly, in his statements to the domestic authorities he indicated only that, being a national of Moldova, he wished to be represented by an advocate provided by the Moldovan Embassy in Russia. Furthermore, in his application of 22 October 1998 he expressly stated that he had no grievance in respect of Advocate B. The applicant persisted in rejecting Advocate B.’s assistance on the same ground after his requests had been forwarded to the Moldovan Embassy and they had replied that they could not be granted. Advocate B. was ultimately released from assisting the applicant after the latter had asked the court for him to be replaced.

The Court finds that in these circumstances the domestic authorities have done everything within their power to ensure the applicant’s right to legal assistance.

As regards the subsequent appointment of Advocate E., the Court notes that the applicant first refused her assistance on the grounds that he was not satisfied with her work. The investigator then requested the Legal-Advice Office to provide another counsel, however, no other lawyer was available. At the same time the applicant expressed no preference for a particular lawyer. Advocate E. was then reassigned to the applicant in accordance with his own wishes, as is shown by his statement of 5 April 2000. Accordingly, the Court finds that the domestic authorities did not violate the applicant’s right to counsel of his own choosing.

As to the alleged failure of Advocate E. to defend the applicant’s interests properly, the Court reiterates that the State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective representation is manifest or is sufficiently brought to their attention in some other way (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, p. 33, § 65). The Court notes that after the applicant had first refused Advocate E.’s assistance, she was re-appointed in accordance with his own wishes. Furthermore, she played an active role in the proceedings before the trial court and later assisted the applicant in the preparation of his appeal.

Inasmuch as the complaint concerns the application for assistance from Advocate S., the Court notes that it was turned down because he could not be contacted because of the applicant’s failure to indicate his address.

As regards the failure to provide the applicant with counsel at the appeal hearing of 11 January 2002, the Court notes that on 21 June 2002 the Presidium of the Moscow Regional Court reversed the appeal judgment and remitted the case for re-examination. As to the alleged failure to provide the applicant with counsel for the appeal hearing of 24 September 2002, it is stated in the appeal judgment that the relevant requirements of the rules of criminal procedure were complied with. The applicant adduced no evidence to suggest otherwise. On the basis of the foregoing considerations, the Court finds no indication of an infringement of the applicant’s rights guaranteed by paragraphs 1 and 3 (c) of Article 6.

(c) Examination of witnesses

1. The parties’ submissions

The Government submitted that several hearings had been adjourned during a period of more than a year in order to ensure the victims’ presence at the hearing. However, they had failed to attend or to inform the court of the reasons for their absence. Moreover, the Moldovan authorities had not replied to the court’s request for information either. Therefore, the first-instance court was justified in its decision to proceed to examine the case on the merits. It was only after the trial that the court received information about some of the victims. Mr M. informed the court that he had received the summons but could not appear at the hearings owing to financial hardship. Mr R. informed the court that he could not appear at the hearings because of ill-health and confirmed the statement he had given at the preliminary investigation. The Commissioner of the village of Ryshkan, Moldova, informed the court that Mr B. did not reside at the address indicated.

The applicant submitted that none of the victims whose statements had been read out at the hearing had actually identified him as the offender during the preliminary investigation.

2. The Court’s assessment

The Court reiterates that the admissibility of evidence is primarily governed by the rules of domestic law, and that, as a rule, it is for the national courts to assess the evidence before them. The task of the Court is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see Asch v. Austria, judgment of
26 April 1991, Series A no. 203, p. 10, §26).

All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him or her either when that witness is making a statement or at a later stage of the proceedings (see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 49). In particular, the rights of the defence are restricted to an extent that is incompatible with the requirements of Article 6 if the conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial (see A. M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX, and Saïdi v. France, judgment of
20 September 1993, Series A no. 261-C, pp. 56-57, §§ 43-44).

As to the notion of witness, given its autonomous interpretation, the Court considers that, although Ms N., Mr R., Mr M., Mr and Mrs L., Mr and Mrs M.-y., Mr B. and Mr S. did not testify at the trial, they should, for the purposes of Article 6 § 3 (d) of the Convention, be regarded as witnesses because their statements, as taken by the investigative authorities, were used in evidence by the domestic courts (see Asch, cited above, p. 10, § 25).

Turning to the facts of the present case, the Court notes that the applicant’s conviction was based, inter alia, on the statements of Ms N.,
Mr R., Mr M., Mr and Mrs L., Mr and Mrs M.-y., Mr B. and Mr S. during the preliminary investigation. They also identified him as the offender at the identification parade. The Naro-Fominsk Town Court adjourned the trial a number of times during a period of over a year and several attempts were made to secure their presence at the trial. Furthermore, it requested information concerning their whereabouts from the Moldovan authorities, which, however, failed to respond in time.

The Court finds that the domestic authorities were not negligent in their efforts to bring the witnesses before the trial court. It would clearly have been preferable for the witnesses to have given evidence in person, but, in view of the authorities’ efforts, their unavailability did not in itself make it necessary to halt the prosecution (see Artner v. Austria, judgment of
28 August 1992, Series A no. 242‑A, p. 10, § 21). Since it proved impossible to secure the witnesses’ attendance at the court hearings, it was open to the national courts, subject to the rights of the defence being respected, to have regard to their statements to the investigative authorities, especially since they could consider those statements to be corroborated by other evidence before them (ibid., p. 10, § 22; see also Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 473, § 80; C.R.R.Scheper v. the Netherlands (dec.)
no. 39209/02, 5 April 2005).

The Court observes that the applicant’s conviction did not rest solely on the statements of the witnesses who were absent at the trial. The courts also had regard to other evidence, in particular, statements by Mr A. given at the court hearing, records of the identification parades, statements by Mr K., who was present at the identification parade, statements of Mr V., the investigator, and also real evidence, including items seized from the applicant that had been identified by the victims as their belongings.

Accordingly, in the circumstances of the case the Court does not find that the failure to examine the prosecution witnesses at the hearing infringed the rights of the defence to an extent incompatible with Article 6 §§ 1 and 3 (d).

As regards the alleged failure of the domestic courts to examine the defence witnesses, the Court notes that the applicant did not submit any evidence that he applied to the court to have the witnesses examined and, consequently, that any such applications had been refused. Accordingly, the Court finds no indication of an infringement of the applicant’s rights guaranteed by Article 6 §§ 1 and 3 (d) regarding this aspect of the complaint either.

(d) Time and facilities for the preparation of defence

1. The parties’ submissions

The Government submitted that the applicant was afforded adequate time and facilities for the preparation of his defence in remand prison IZ-50/9. In particular, he was able to meet his lawyer when required, had been able to lodge numerous complaints and applications about his case with various authorities from his prison cell and all his correspondence had been dispatched and handed over to him without undue delay. The Government submitted a copy of the correspondence register according to which 22 complaints and applications by the applicant were sent between 28 May and 30 September 2002 to various addressees.

The applicant indicated that the Government had failed to provide detailed information concerning his meetings with his lawyer.

2. The Court’s assessment

The Court reiterates that Article 6 § 3 (b) guarantees the accused “adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court, and thus to influence the outcome of the proceedings. The provision is violated only if this is made impossible (see Can v. Austria, no. 9300/81, Commission’s report of 12 July 1984, Series A no. 96, § 53).

The “rights of defence”, of which Article 6 § 3 (b) gives a non-exhaustive list, have been instituted, above all, to establish equality, as far as possible, between the prosecution and the defence. The facilities which must be granted to the accused are restricted to those which assist or may assist him in the preparation of his defence (see Jespers v. Belgium, no. 8403/78, Commission’s report of 14 December 1981, DR 27, p. 61, §§ 55, 57).

Turning to the facts of the present case the Court notes that on 24 February 1999 the applicant acknowledged receipt of a copy of the bill of indictment in Moldovan by his signature. He also acknowledged receipt of a copy of the judgment of the Naro-Fominsk Town Court of 26 April 2000 in Russian in a written statement made on 27 April 2000.
A copy of the judgment in Moldovan together with a transcript of the hearing was provided to the applicant on 16 June 2000. However, he refused to accept service of them, as he confirmed in his written statement. The applicant was provided with the case file for perusal before the trial on 26 October 1998, 10 February 1999 and 14 April 2000 and between the trial and the examination of the appeal on 15 November 2000. He failed to submit any evidence in support of the allegations that his signature acknowledging receipt of a copy of the bill of indictment had been forged or that certain documents had been falsified or destroyed by the judge. The Court notes that on 17 February 1999 a new bill of indictment was drawn up and the case transmitted to court, however, the trial did not commence until 21 April 2000. The first appeal hearing took place on 11 January 2002. In these circumstances the Court is satisfied that the applicant had sufficient “time” to prepare his defence.

As regards the “facilities” available to the applicant in remand prison
IZ-50/9 , the Court notes that no restrictions were placed on the applicant as regards access to the case file and free legal aid and assistance was at his disposal. As for the applicant’s allegations that his right to meet with his lawyer had been restricted, he failed to provide any details, let alone evidence, of such restrictions. Nor has it been shown that this issue was brought to the attention of the competent authorities.

Therefore, the Court finds no indication that the applicant’s rights protected by Article 6 §§ 1 and 3 (b) have been violated.

(e) Other complaints related to the fairness of the proceedings.

As regards the applicant’s complaint that he was not afforded an opportunity to make representations in his defence before the trial court, it appears that the applicant was questioned by the trial court, gave evidence at the hearings and stated his views on various procedural matters. The applicant raised this complaint before the appeal court, which found that all his statements had been fully examined by the trial court. The applicant adduced no evidence to this Court to suggest otherwise.

The Court further notes that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair (see, inter alia, Bernard v. France, judgment of 23 April 1998, no. 22885/93, § 37, ECHR 1998-II). The Court finds that in the present case the domestic courts at two levels of jurisdiction carefully examined the materials in their possession and reached reasoned conclusions concerning the charges against the applicant. The applicant had ample opportunity to state his case and contest any evidence he considered false. There is no evidence of any unfairness within the meaning of Article 6 in this respect.

(f) Length of the proceedings

The Court notes that the period to be taken into consideration began with the institution of the criminal proceedings against the applicant on 16 September 1998, and ended on 24 September 2002, with a final judgment of the Moscow Regional Court. They thus lasted 3 years, 6 months and 28 days, excluding the period between 11 January 2002 and 21 June 2002, when the proceedings were not pending (see Markin v. Russia (dec.), no. 59502/00, 16 September 2004).

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000‑XI).

The Court finds that the present case, which concerned several counts of robbery and burglary, could not be regarded as “simple”. It notes that between 17 February 1999 and 21 April 2000 the hearings were adjourned a number of times. The reason for such adjournments was that the trial court was attempting to secure the presence of the prosecution witnesses residing outside Russia at the hearing, and, therefore, the delay was justified in the interests of justice. The Court finds no other significant delays attributable to the domestic authorities. Accordingly, the length of the proceedings in the present case was not in breach of the “reasonable-time” requirement of Article 6 § 1.

(g) Conclusion

Having regard to all of the above the Court finds no indication of any infringement of the applicant’s rights guaranteed by Article 6 of the Convention. It follows that this part of the application is manifestly
ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

6. The applicant alleged that during his detention in remand prison
IZ-50/9 he was not allowed visits from his family and his right to send correspondence was restricted. The Court notes that the complaints concerning the visits by his family and the alleged restriction on his right to correspondence may give rise to issues under Article 8 of the Convention.

Article 8 provides as follows:

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

2. 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.”

The Court must first examine whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention. The applicant has not provided the Court with any evidence to show that he raised these complaints before the domestic authorities. The Court finds therefore that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. Inasmuch as such failure may be argued to have been caused by the very nature of the violation alleged, that is the restriction of the right to correspondence, the Court observes that the applicant did not submit any details, let alone evidence, of any such restriction. Furthermore, it notes that according to the correspondence register, submitted by the Government, 22 complaints and applications by the applicant were sent to various recipients from remand prison IZ-50/9 between 28 May and 30 September 2002.

It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 3 of the Convention about the conditions of detention in the remand prison IZ-50 (Moscow Region), about having been ill-treated by police officers upon his arrest and also in September 1998, and about having been ill-treated in the remand prison IZ-50 (Moscow Region) on 23 June 2002;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President