Постановление Европейского суда по правам человека от 10.06.2010 «Дело Захаркин (zakharkin) против России» [англ.]

Город принятия

(Application No. 1555/04)
(Strasbourg, 10.VI.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zakharkin v. Russia,

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

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Khanlar Hajiyev,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 20 May 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 1555/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention" by a Russian national, Mr Valeriy Alekseyevich Zakharkin ("the applicant", on 2 December 2003.

2. The applicant was represented by Ms A. Demeneva, a lawyer with the Urals Centre for Constitutional and International protection of Human Rights. The Russian Government ("the Government" were initially represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin.

3. The applicant alleged, in particular, that he had been detained in appalling conditions, that he had not received adequate medical care in detention, that the criminal proceedings against him had been unfair and that the effective exercise of his right of petition had been hindered by the authorities.

4. On 9 June 2008 the President of the First Section decided to communicate the above complaints to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

5. On 23 November 2009 the President made a decision on priority treatment of the application (Rule 41 of the Rules of Court).

I. The circumstances of the case
6. The applicant was born in 1970. He is now serving his sentence in the Perm Region.

A. The applicant's arrest and detention
at the police station on 15 and 16 October 1999
7. On 15 October 1999 the applicant was arrested in Yekaterinburg on suspicion of robbery. He was allegedly beaten up by the police. At about midnight he was put in a cell at the Kirovskiy District police station.

8. The applicant stayed in the cell until 5.40 p.m. on 16 October 1999. The cell was not equipped with a bunk or a bench. The applicant remained handcuffed all the time. He was not given any food and was escorted to the toilet only once, in the morning.

9. By letter of 11 June 2003, the head of the Kirovskiy District police station of Yekaterinburg confirmed that the cells in the police station were not equipped with bunks or benches and that detainees were not provided with food.

B. The applicant's detention in the temporary
detention facilities in Yekaterinburg and Ozersk
from 16 October to 25 November 1999
10. On 16 October 1999 the applicant was transported to the Yekaterinburg temporary detention facility.

11. A certificate issued on 29 August 2002 by the doctor of the Yekaterinburg temporary detention facility indicates that the applicant was held in the facility from 16 to 25 October 1999. A medical examination revealed a bruise on his right eye and abrasions on his face.

12. On 25 October 1999 the applicant was transferred to remand centre No. IZ-66/1 in Yekaterinburg.

13. On 2 November 1999 he was escorted to the prosecutor's office, where he was questioned. After questioning he was transported to the Ozersk Town temporary detention facility in the Sverdlovskiy Region. On his way there the escorting officers allegedly beat him and urged him to confess. Once in the detention facility, the applicant signed a confession statement.

14. The applicant remained in the Ozersk Town temporary detention facility until 25 November 1999. He was held in a solitary cell measuring 2 sq. m. The cell was not equipped with a bunk or toilet facilities. The applicant was escorted to the toilet twice a day. He was given bread and tea three times a day. The window allegedly had no glazing and it was extremely cold in the cell. A certificate issued by the Federal Meteorological Service indicates that the outside temperature in November 1999 ranged from 6 °C to - 21 °C.

15. On 25 November 1999 the applicant was transported to remand centre No. IZ-66/1 in Yekaterinburg, where he remained for the entire duration of the criminal proceedings against him.

16. On 2 and 3 December 1999 the applicant allegedly complained to the prosecutor's office that he had been ill-treated by the police. He did not receive any reply. He did not produce copies of his complaints.

C. The criminal proceedings against the applicant
17. The trial started on 18 December 2001 in the Sverdlovskiy Regional Court. It transpires from the trial record that on 20 March 2002 the presiding judge Ms G. chose by lot, from a list of ten names, two lay judges and a substitute lay judge to examine the applicant's case. The formation thus included the presiding judge Ms G., two lay judges, Ms T. and Ms O., and a substitute lay judge, Ms Ye.

18. On 19 September 2002 the Sverdlovskiy Regional Court convicted the applicant of several counts of armed robbery, murder and attempted murder of a policeman and sentenced him to life imprisonment. The applicant appealed, complaining, in particular, about the allegedly unlawful composition of the trial court.

19. On 3 June 2003 Ms Perevoshchikova, counsel for the applicant, asked the President of the Sverdlovskiy Regional Court for information about the appointment and terms of office of the lay judges Ms T., Ms O. and Ms Ye. On 17 July 2003 a deputy President of the Sverdlovskiy Regional Court replied that all judges of the Sverdlovskiy Regional Court were competent to try criminal cases at first instance. He disclosed no details about the appointment procedure or terms of office of the lay judges.

20. On 28 August 2003 the Supreme Court of the Russian Federation rejected the applicant's request to allow the lawyer Ms Demeneva to act as his counsel, on the grounds that she was not a professional advocate and was not present at the appeal hearing. It was also noted that the applicant was represented by Ms Perevoshchikova, counsel. The court then examined the applicant's appeal and upheld the conviction. It held that no breach of the rules on the appointment of lay judges had been established.

21. On 8 September 2003 counsel for the applicant applied to the President of the Sverdlovskiy District Court for permission to access copies of judgments delivered by the Sverdlovskiy District Court between 1999 and 2002, in order to verify whether the lay judges Ms T., Ms O. and Ms Ye. had participated in other criminal cases during those years. She also asked the President whether the names of the lay judges had been drawn at random by lot as required by the Lay Judges Act.

22. By undated letter the President of the Sverdlovskiy Regional Court refused access to the court's archives, stating that counsel could only study the applicant's case file. Ms T. and Ms O. had been appointed as lay judges in 1993, while Ms Ye. had been appointed in 1999. Their terms of office had been extended by presidential decrees. He further mentioned that the names of the lay judges had been drawn by lot, but refused to send a copy of the records.

23. On 30 September 2003 the head of the secretariat of the Sverdlovskiy Regional Legislature informed counsel for the applicant that the list of lay judges for the courts of the Sverdlovskiy Region had been complied in May 2000. Ms T., Ms O. and Ms Ye. did not appear on the 2000 lists.

24. On 8 February 2006 the Presidium of the Supreme Court, acting on supervisory review, quashed the appeal judgment, finding that the applicant had not been notified of the date and time of the appeal hearing. It remitted the case to the Supreme Court for fresh examination on appeal.

25. On 31 July 2006 the Supreme Court upheld the conviction on appeal. It held, in particular, that the lay judges Ms T. and Ms O. had been appointed in 1993 and that their term of office had been extended by presidential decrees. It concluded that the court's composition had been lawful. The applicant was represented by two lawyers of his choice.

26. The documents submitted by the Government show that on 25 March 1999 the Sverdlovskiy Regional Legislature selected 551 lay judges to be assigned to the Sverdlovskiy Regional Court. The list mentioned Ms Ye., but not Ms T. or Ms O. By decisions of 18 and 25 May 2000 the Sverdlovskiy Regional Legislature determined the number of lay judges to be selected for each district court. No actual selection of lay judges was made.

D. The conditions of the applicant's detention
in remand centre No. IZ-66/1 in Yekaterinburg
27. From 25 November 1999 to 18 November 2003 the applicant was held in remand centre No. IZ-66/1 in Yekaterinburg. On 18 November 2003 he was transferred to a correctional colony in the Vologda Region.

1. The Government's description of the conditions
of the applicant's detention
28. According to a certificate of 18 August 2008 issued by the remand centre management and produced by the Government, until July 2002 the applicant was held in communal cells. It was not possible to establish the number of inmates in each cell, as the remand centre registers for that period had been destroyed on expiry of the statutory storage time-limit. From 6 July 2002 to 18 November 2003 the applicant was held in solitary cells. Cell No. 210 measured 6 sq. m, cell No. 32 measured 4.5 sq. m, cell No. 1 measured 4 sq. m and cell No. 10 measured 7 sq. m.

29. The Government submitted, relying on certificates dated 18 August 2008 from the remand centre management, that all the cells were naturally illuminated and ventilated through the windows. The windows in all the cells were glazed. They had no blinds or other screens preventing the access of natural light. Moreover, all the cells were fitted with fluorescent lamps which functioned during the day and at night. The cells were equipped with central heating and the average temperature inside was above 20 °C in winter and above 18 °C in summer.

30. It follows from the same certificates that all the cells had toilet facilities which were not separated from the living area by a partition as "there was no such requirement under [domestic law]". It was, however, possible to screen the toilet facilities off by a curtain. The dining table and the beds were situated at least two metres away from the toilet facilities. There were no insects or rodents in the remand centre, as all the cells were disinfected every month. The applicant was allowed to take a shower once a week and was provided at that time with clean bedding. He was also supplied with boiled drinking water and wholesome hot food three times a day. He had an hour-long daily walk. Occasionally the duration of the daily walk was shortened to thirty minutes. In reply to the applicant's complaints, the warders responsible for that omission had been reprimanded. Pursuant to an order by the governor of the remand centre the applicant, who was considered dangerous, was handcuffed when taken to the exercise yard.

31. In addition to the certificates of 18 August 2008 the Government also produced certain documents dating from the period of the applicant's detention in remand centre No. IZ-66/1 in support of their description of the conditions of the applicant's detention. Hence, they submitted a letter of 16 October 2002 addressed to a deputy prosecutor of the Sverdlovskiy Region in which the chief sanitary inspector of penitentiary institutions stated that the applicant was currently held in cell No. 32. The cell measured 6.5 sq. m, was illuminated artificially by fluorescent lamps and was equipped with central heating and sewerage facilities. The average temperature was 18 to 20 °C and the humidity was "subjectively normal". The cell was equipped with a bunk and the applicant was provided with bedding. The inspector added that the applicant had been previously held in cell No. 210, which measured 8.8 sq. m and possessed the same characteristics.

32. The Government also submitted a decision of 1 November 2002 by the governor of the remand centre ordering that the applicant be handcuffed every time he was let out of his cell, including when he was taken to the visitors' room, the exercise yard or the shower room. He noted that the applicant had been sentenced to life imprisonment and had been registered as a person liable to escape, attack the warders and take hostages. Accordingly, his handcuffing was necessary to protect the warders and escorting officers.

33. According to numerous written statements from the warders, produced by the Government, the conditions of the applicant's detention were satisfactory. He was provided with sufficient food three times a day. His cells were clean, warm and dry. One of the warders, Mr I., stated that the applicant's cell was one of the best in the remand centre. He continued:

"One day in December 2002 [the applicant] asked for a piece of material that he might use to insulate his window. The window was not glazed and it was covered by a blanket. In principle, that had no impact on the temperature in cell No. 10 where [the applicant] was held. It was very warm in the cell... [the applicant] was given a piece of polythene...

[The applicant] always wears handcuffs on the way to the exercise yard, but in the yard the handcuffs are removed..."
34. Finally, without relying on any documents, the Government submitted that one of the solitary cells in which the applicant was held, cell No. 10, measured 5.2 sq. m. The windows in the remand centre were not covered with blinds, these having been removed before 25 December 2002. The toilet facilities were equipped with a flush system and were separated from the living area by a partition.

2. The applicant's description
of the conditions of his detention
35. From 25 November 1999 to 6 July 2002 the applicant was held in various cells in buildings Nos. 2 and 3 in remand centre No. IZ-66/1. Each cell