GRAND CHAMBER

CASE OF SVINARENKO AND SLYADNEV v. RUSSIA

( Applications nos. 32541/08 and 43441/08 )

JUDGMENT

STRASBOURG

17 July 2014

This judgment is final but may be subject to editorial revision .

In the case of Svinarenko and Slyadnev v. Russia ,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Dean Spielmann , President, Josep Casadevall , Guido Raimondi, Ineta Ziemele , Mark Villiger , Peer Lorenzen , Boštjan M. Zupančič , Danutė Jočienė , Ján Šikuta , George Nicolaou , Luis López Guerra, Vincent A. de Gaetano, Linos -Alexandre Sicilianos , Helen Keller, Helena Jäderblom , Johannes Silvis, Dmitry Dedov , judges, and Michael O ’ Boyle , Deputy Registrar ,

Having deliberated in private on 18 September 2013 and on 11 June 2014 ,

Delivers the following judgment, which was adopted on the last ‑ mentioned date:

PROCEDURE

1 . The case originated in two applications (nos. 32541/08 and 43441/08 ) 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 two Russian nationals, Mr Aleksandr Sergeyevich Svinarenko and Mr Valentin Alekseyevich Slyadnev (“the applicants”), on 5 May 2008 and 2 July 2008 respectively .

2 . The applicants alleged, in particular, that keeping them in a “ metal cage ” in a courtroom had amounted to degrading treatment proh ibited by Article 3 of the Convention and that the length of the criminal proceedings against them had been excessive , in breach of Article 6 § 1 of the Convention .

6 . A hearing took place in public in the Human Rights Building, Strasbourg, on 18 September 2013 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government Mr G. Matyushkin , Representative of the Russian Federation at the European Court of Human Rights ,              Agent , M r N. Mikhaylov , Mr P. Smirnov , Ms O. Ocheretyanaya , Advisers ;

(b) for the applicants Mr V. Palchinskii , representative of Mr Svinarenko , Counsel , Mr E. Plotnikov , M s V. Taysaeva , representatives of Mr Slyadnev . Counsel .

The Court heard addresses by Mr Palchinskii , Mr Plotnikov , Ms Taysaeva and Mr Matyushkin .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7 . The applicants were born in 1968 and 1970 respectively . The first applicant, Mr Svinarenko , is currently serving a sentence of imprisonment in the Murmansk region . The second applicant, Mr Slyadnev , live s in the s ettlement of Sinegorye in the Yagodninskiy district of the Magadan region .

A. Preliminary investigation

8 . In 2002 the Far Eastern Federal Circuit Investigation Department of the Investigation Committee at the Ministry of the Interior brought several sets of criminal proceedings against a Mr Grishin .

9 . On 24 September 2002 the first applicant was questioned as one of the suspects in those proceedings. On 9 October 2002 he was arrested. In a decision of 12 November 2002 ordering his detention on remand, the Magadan Town Court noted that the crimes he was charged with had been committed during a three-year probation period under a judgment of the Magadan Region Yagodninskiy District Court of 13 April 2001 convicting him of theft and imposing on him a conditional sentence of five years ’ imprisonment. It also noted that he had negative references from his place of residence and that he had breached his undertaking to appear before the investigating authority. According to the final charges against the first applicant, he was accused of robbery with violence against Mr A.S. and Mrs T.S. in September 2002 as a member of a gang led by Mr Grishin , and of the illegal acquisition, storage, transportation and carrying of ammunition.

10 . On 20 January 2003 the second applicant, who was serving a sentence of imprisonment after his conviction by the Magadan Region Yagodninskiy District Court on 26 July 2002 for negligent infliction of death under Article 109 § 1 of the Criminal Code of the Russian Federation (“the CC”), was questioned as one of the suspects in the proceedings brought against Mr Grishin . On 22 January 2003 he was charged with the following crimes:

( i ) establishing an armed gang under Mr Grishin ’ s leadership and participating in the gang ’ s attacks on citizens from October 2001 to Sep tember 2002 – under Article 209 § 1 of the CC;

(ii) the robbery in October 2001 of Mr V.B., the director of a private gold ‑ refining company, with the use of weapons and violence endangering life and health and a threat to use such violence, by an organised group, with the aim of misappropriating another ’ s property of substantial value – under Article 162 § 3 of the CC;

(iii) illegal storage and transportation of precious metals (industrial gold allegedly misappropriated from Mr V.B.) of substantial value by an organised group in October 2001 – under Article 191 § 2 of the CC;

(iv) extortion ( against Mr V.B.) in October 2001 with the aim of obtaining a right to property under the threat of the use of violence, by an organised group – under Article 163 § 3 of the CC;

(v) the robbery of Mr Ya.B . in October 2001 with the use of weapons and violence endangering life and health and the threat to use such violence, by a group of persons according to a premeditated plan, by means of illegal entry into a dwelling with the aim of misappropriating another ’ s property of substantial value – under Article 162 § 3 of the CC; and

(vi) illegal acquisition, storage, transfer, transportation and carrying of firearms by an organised group in Octobe r 2001 – under Article 222 § 3 of the CC.

11 . On 11 April 2003 the Magadan Region Khasynskiy District Court found the second applicant to be eligible, in view of his orderly behaviour and positive references, for early conditional release one year and three months ahead of the term of two years and three months to which he had been sentenced under the Yagodninskiy District Court ’ s judgment of 26 July 2002.

12 . On 24 April 2003 the Magadan Town Court ordered the second applicant ’ s remand in custody in the criminal proceedings at issue in the present case . It noted, inter alia , that he was accused of grave crimes which had been committed during a three-year probation period under the Yagodninskiy District Court ’ s judgment of 15 June 2001 convicting him of hooliganism and wilful infliction of grievous bodily harm and sentencing him conditionally to four years ’ imprisonment.

13 . On 20 May 2003 the investigation was completed and the defence received access to the case file.

14 . On 13 August 2003 the Magadan Town Court found that the second applicant had been deliberately delaying the examination of the case file and set a time-limit for the examination at 5 September 2003.

B. T rial proceedings

1. First trial

15 . On 19 September 2003 the case was sent for trial to the Magadan Regional Court, which held from 16 October to 26 December 2003 a preliminary hearing to decide on numerous requests by the applicants and their two co-defendants concerning the admissibility of the evidence and other procedural issues, as well as to prepare the jury trial requested by the defendants. During this period the hearing was postponed for about four weeks at the co-defendants ’ request.

16 . As a result of the preliminary hearing, on 26 December 2003 the Regional Court ordered that the case be examined at an open hearing by a jury on 23 January 2004. On that day fewer than twenty candidate jurors appeared before the court instead of the fifty invited and the court, therefore, ordered that another 100 candidate jurors be summoned.

17 . On 13 February 2004 a jury was empanelled and sworn in.

18 . The Regional Court held about thirty court sessions, during which it decided various procedural issues, such as the replacement of some jurors, the exclusion or examination of certain evidence and the ordering of expert opinions. It examined the evidence, including the testimony of the victims, witnesses and experts, and heard the defendants. The hearing was adjourned for two weeks as one of the defence lawyers could not attend.

19 . On 15 June 2004 the prosecution amended one of the robbery charges against the second applicant (concerning Mr Ya.B .) to the lesser charge of “arbitrary unlawful acts ” ( самоуправство ) with the use of violence, under Article 330 § 2 of the CC.

20 . On 22 June 2004 the jury found the applicants not guilty. They were released in the courtroom. On 29 June 2004 the Magadan Regional Court delivered a judgment in which they were acquitted and their right to rehabilitation was acknowledged.

21 . The co-defendants and the prosecution appealed against the trial court ’ s judgment. On 7 December 2004 the Supreme Court of the Russian Federation examined the case on appeal and quashed the judgment on the grounds, inter alia , that some of the jurors had concealed information about their family members ’ criminal records although they had been obliged to disclose such information to the parties and to the court at the time of their selection ; and that the presiding judge had failed to sum up all the evidence in his directions to the jury, in particular failing to sum up the victims ’ and witnesses ’ statements. The Supreme Court remitted the case to the Magadan Regional Court for fresh examination.

2. Second trial

22 . On 21 December 2004 the Regional Court received the case file. It adjourned its hearing twice, on 31 January and 7 February 2005, as the second applicant ’ s lawyer had failed to appear.

24 . The Regional Court ’ s decision of the same date to remit the case to the Magadan Regional Prosecutor for the rectification of errors in the indictment was appealed against by the defence and quashed as erroneous by the Supreme Court on 26 April 2005.

26 . The hearing resumed on 22 November 2005. On that day, however, fewer than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that another 100 candidate jurors be summoned.

27 . On 6 December 2005 the Regional Court ordered that the applicants and the other two defendants be detained on remand. It noted the applicants ’ previous convictions, the serious charges against them, and the fact that during the preliminary investigation and the current trial some of the victims and witnesses had expressed fears of unlawful behaviour by the defendants. In its decision it did not give any details concerning the fears referred to, or the names of the defendants concerned. The applicants ’ appeal s against the detention order were dismissed by the Supreme Court of the Russian Federation in its decision of 22 February 2006. In upholding the Regional Court ’ s detention order, the Supreme Court noted that one of the victims, Mr Ya.B ., had asked for the case to be examined without his participation as he had been afraid to give evidence in open court . T his fear constituted , according to the Supreme Court, a sufficient ground to consider that the defendants did not satisfy the condition of not obstructing the proceedings in order for them to remain free under the previously imposed undertaking not to leave their place of residence . The applicants ’ detention was subsequently extended for similar reasons.

28 . On 9 December 2005 the jury was empanelled and sworn in and the court held hearings on 12, 20 and 23 December 2005. On the last-mentioned date one of the co-defendants was granted leave to engage a new lawyer. On 27 December his new lawyer failed to appear and the hearing was adjourned until 10 January 2006, 1-9 January being non-working days. The Regional Court continued the examination of the case in January. It ruled on numerous procedural requests by the defence, in particular requests seeking the replacement of the presiding judge and the prosecutor.

29 . As the witnesses and victims who lived in Sinegorye had failed to appear at the hearings several times, on 17 January the court ordered them to be brought before it under escort . The hearing was adjourned on 20 January until 27 January and on 26 February until 10 March 2006 , pending the execution of that order.

30 . The examination of the case continued in February, March, April and May 2006. During this time the hearing was adjourned on a number of occasions for about four weeks in total at the request of jurors who could not participate, and for about a week at the request of one of the defence lawyers, who was ill. On 2 June 2006 the presiding judge declared the examination of the evidence closed. In five sessions in June 2006 the Regional Court heard the parties ’ oral argument . It announced a break from 14 July until 3 October 2006 in view of the fact that several jurors were leaving for their summer holidays in central Russia.

31 . The hearing resumed on 3 October 2006. Having consulted the parties, the court decided that they would repeat their oral argument . They did so on 6, 12 and 19 October and 2 November 2006. The preparation of questions to be put to the jury then followed. The jury gave its verdict on 17 November 2006. The first applicant was found not guilty and was released in the courtroom.

32 . On 5 December 2006, after an examination of the legal issues during the sessions held in November and December, the Regional Court delivered its judgment. The first applicant was acquitted and his right to rehabilitation was acknowledged. The second applicant was convicted of extortion ( against Mr V.B.), and “ arbitrary unlawful acts ” with the use of violence (in respect of Mr Ya.B .), and was sentenced to seven years ’ imprisonment ( which took into account his 2001 conviction, in respect of which the conditional sentence was revoked ). He was acquitted on the remaining charges. His detention on remand was to continue until the judgment took effect.

33 . On 6 June 2007 the Supreme Court examined the appeals against the judgment lodged by a co-defendant , one of the victims and the prosecution. It found that the defendants and their lawyers had breached the rules on criminal trials by committing an abuse of their rights , namely, by discussing in the jurors ’ presence , despite the presiding judge ’ s warnings, issues which fell outside the scope of the jurors ’ competence . They had also made remarks which did not concern the issues to be decided by the jury and which had been aimed at discrediting the evidence against them, thus creating a negative impression of the victims and the presiding judge, and a positive one of themselves. This was held by the Supreme Court to have unlawfully influenced the jury ’ s verdict. It was also noted that the jury ’ s verdict had not been entirely clear as some of the answers to the questions put to them had been contradictory. The Supreme Court quashed the judgment and remitted the case to the Regional Court for a fresh examination. It also ordered that the second applicant remain in custody.

34 . In August 2007 the first applicant was detained on remand in connection with an unrelated set of criminal proceedings brought against him on suspicion of an extortion allegedly committed in 2002.

3. Third trial

35 . On 4 September 2007 the Magadan Regional Court received the case file and opened the proceedings. On 5 October 2007 fewer than twenty candidate jurors appeared before the Regional Court instead of the 100 invited and the court, therefore, ordered that another 150 candidate jurors be summoned.

36 . On 2 November 2007 the selection of the jurors began. However, after a number of candidate jurors refused to sit in the case, the number available was still insufficient and the court ordered that another 150 candidate jurors be summoned. The same situation occurred on 22 November 2007.

37 . The number of candidate jurors who appeared before the Regional Court was again insufficient on 11 December 2007 and 17 January 2008, necessitat ing the summoning of an additional 200 and 250 persons respectively.

38 . A jury , composed of twelve jurors and two substitute jurors , was empanelled on 5 February 2008 from thirty-four candidate jurors wh o had appeared before the court , and the trial commenced. The court held five or six sessions monthly from February to June 2008, two sessions in July, four in August (after a break for the jurors ’ holidays from 1 July to 18 August), eleven in September, six in October, ten in November and four in December 2008. Some of the sessions were held without the jury as they concerned various procedural issues, including the admissibility of evidence and requests for the examination of the evidence before the jury. The court examined the vast body of evidence, including the testimony of more than seventy victims and witnesses, and numerous expert reports.

39 . For about a month the trial was delayed because a co-defendant was ill. Some delay was caused by difficulties in ensuring the appearance of some of the victims and witnesses, who resided in remote settlements in Burkhala and Sinegorye , or who had moved to the central and other parts of the country.

40 . On 13 February 2009 the Regional Court started hearing the parties ’ oral argument .

41 . On 7 March 2009 the jury returned a “ not guilty ” verdict in respect of the first applicant. It found the second applicant guilty of “ arbitrary unlawful acts ” and not guilty o n the remaining charges.

42 . On 12 March 2009 the Regional Court ordered the second applicant ’ s release on an undertaking not to leave his place of residence and t o behave in a law-abiding manner.

43 . On 19 March 2009 it delivered its judgment, acquitting the first applicant and finding , in respect of the second applicant , that o n 11 October 2001 he, Mr Grishin and Mr N.G. ( against whom the criminal proceedings were terminated owing to his death ) had requested Mr Ya.B . to repay a debt in the amount of 100,000 Russian roubles (RUB) ; f ollowing Mr Ya.B. ’ s refusal Mr Grishin and Mr N.G. had beaten him up ; the second applicant had beaten up Mr S.K., who had witnessed Mr Ya.B. ’ s beating ; t hey had then taken Mr Ya.B . to his home and Mr Grishin had taken money from him in the amount of RUB 247,000.

44 . The Regional Court noted that there had been mixed references in the materials of the case about the second applicant , who had been characterised negatively by the local authority and by a district police officer at the place of his residence, and positively by the administration of a detention facility, in which he had been detained on remand, and by the administration of a prison in which he had served his sentence after a previous conviction.

45 . The Regional Court convicted the second applicant , under Article 330 § 2 of the CC , of “ arbitrary unlawful acts ” with the use of violence, sentenced him to two years and ten months ’ imprisonment, revoked the conditional sentence under his 2001 conviction as the new crime had been committed during the probation period, and, after adding the revoked conditional sentence, sentenced him to a total of four years and five months ’ imprisonment ; it discharged him from serving the sentence in the part relating to t he conviction under Article 330 § 2 as liability for the relevant offence had become time-barred, and found that he had served his sentence in the remaining part in view of his detention on remand from 24 April 2003 to 22 June 2004 and from 6 December 2005 to 12 March 2009, which amounted to four years, five months and six days in total. It acquitted him o n the remaining charges.

46 . As of 19 March 2009 the first applicant was still detained in connection with unrelated criminal proceedings against him (see paragraph 34 above).

47 . On 23 July 2009 the Supreme Court dismissed an appeal by a co ‑ defendant and the prosecution and upheld the judgment.

C. Conditions in the courtroom

49 . A rmed police guards remained beside the caged dock. There were always two police guards per detainee – eight police guards in total during the first and second trials and six police guards for the applicants and one of their co-defendants during the third trial.

D. Compensation proceedings

51 . On 23 October 2009 the Magadan Regional Court awarded him RUB 18,569 in respect of pecuniary damage, representing an unemployment allowance that had not been paid as a result of his detention on remand . On 17 December 2009 the Supreme Court of the Russian Federation upheld t he Regional Court ’ s judgment.

52 . On 1 March 2010 the Mag adan Town Court awarded the first applicant RUB 50,000 in respect of non-pecuniary damage incurred by him as a result of his criminal prosecution, the imposition on him of an undertaking not to leave his place of residence and his detention on remand from 9 October 2002 to the moment of his release , following the first “ not guilty ” jury verdict of 22 June 2004 an d from 6 December 2005 until 17 November 2006 . The applicant appealed against the judgment arguing, inter alia , that the amount awarded to him was not just or reasonable. On 30 March 2010 the Magadan Regional Court dismissed the applicant ’ s appeal and upheld the Town Court ’ s judgment.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Prohibition of degrading treatment

“ 1. Human dignity shall be protected by the State. Nothing may serve as a basis for derogation therefrom .

2. No one shall be subject ed to torture, violence or other severe or degrading treatment or punishment ... ”

B. Metal cages in courtrooms

1. Circular of the Ministry of Justice, the Supreme Court and the Ministry of the Interior

55 . A n unpublished circular of 3 February 1993 issued jointly by the Ministry of Justice of the Russian Federation (no. 5-63-96), the Supreme Court of the Russian Federation (no. 11- nk /7) and the Ministry of the Interior of the Russian Federation (no. 1/483) contained “proposals on creating the proper conditions for courts ’ examination of criminal cases and the safety of trial participants and the guards of the internal troops and police escorts in the performance of their duties”. It directed the presidents of courts of general jurisdiction “ to ensure , before 1 January 1994, the fitting of all the courtrooms with special fixed metal barriers separating defendants in criminal cases from the court bench and the visitors attending the hearing”. It also instructed prisoner escort officers to place behind those “ bar rier s ” any defendants who were in custody .

2 . Orders of the Ministry of th e Interior

(a) Order of 1996

56 . The D irections on Guarding and Transferring S uspects and A ccused, pre ‑ approved by the Supreme Court of the Russian Federation, the Ministry of Justice and the Prosecutor General ’ s Office, and approved by the Ministry of the Interior of the Russian Federation o n 26 January 1996 by O rder no. 41 ( dsp ) “for internal use only” , provided for the placement of defendants behind the metal “barrier” in a courtroom.

(b) Order of 2006

(c) The Supreme Court ’ s review of the o rders

58 . Order no. 41 was challenged before the Supreme Court of the Russian Federation by a Mr Sh. on the ground that its provision on keeping defendants behind the metal “barrier” during their trials violated domestic law and the Convention in so far as both prohibited degrading treatment and guaranteed the right to a fair trial. He complained that he had actually been kept in a metal cage in a courtroom during his trial, and that it had made it impossible for him to communicate with his lawyer.

3 . Construction rules

(a) The Rules at the time of the applicants ’ trial

62 . On 2 December 1999 the Courts Administration Office at the Supreme Court of the Russian Federation approved, by order no. 154, the Rules on the Design and Construction of Courthouses for Courts of General Jurisdiction ( SP 31 ‑ 104 ‑ 2000 ) . The Rules were further approved by the Federal State Committee for Construction , Housing and Communal Services , and came into force on 1 August 2000 . They were prepared by a group of experts including the President of the Supreme Court of the Russian Federation , the General Director of the Courts Administration Office at the Supreme Court of the Russian Federation and members of the Council of Judges of the Russian Federation. The Rules took account of the proposals set out in the joint circular of the Ministry of Justice, the Supreme Court and the Ministry of the Interior of 3 February 1993 (see paragraph 55 above).

64 . Among other security arrangements the Rules provided for a ccess from the defendants ’ cells in the courthouse to the courtroom through separate corridors and stairs and a separate entry to the courtroom. The public entrance to the courthouse and to the courtroom for hearing criminal cases had to provide for the installation of metal detectors . M etal bars had to be installed on the windows in the courtroom (paragraphs 5.11, 5.35, 8.1 and 8.2 of the Rules).

(b) The new Rules

65 . Since 1 July 2013 the design and layout of courthouses for courts of general jurisdiction has been regulated by Rules prepared by a group of experts from the Courts Administration Office at the Supreme Court of the Russian Federation , architectural and construction organisations, and approved by the Federal Agency for Construction, Housing and Communal Services on 25 December 2012.

C . Detention on remand

67 . Under the general provision in Article 108 of the Code of Criminal Procedure of the Russian Federation, d etention on remand could be ordered by a court in respect of persons suspected or accused of having committed a criminal offence punishable by more than two years ’ imprisonment (three years ’ imprisonment since December 2012) , provided that a less restrictive preventive measure, such as , for example, an undertaking not to leave one ’ s place of residence, personal surety or bail, could not be applied. P ersons suspected or accused of having committed a criminal offence punishable by lesser terms of imprisonment could still be remanded in custody in exceptional circumstances, notably if they had no permanent place of residence, their identity had not been established, or they had breached a previously imposed preventive measure or absconded.

68 . A court was required to consider whether there were sufficient grounds to believe that the accused might abscond, reoffend or obstruct the proceedings ( ibid. , Article 97). Other circumstances, such as the seriousness of the charge, the accused ’ s personality , his age, state of health, family status and occupation , also had to be taken into account ( ibid. , Article 99).

III. RELEVANT INTERNATIONAL MATERIALS AND PRACTICE

A. The United Nations Human Rights Committee

70 . At its meeting on 20 March 2014, after consideration of communication No. 1405/2005, submitted by Mikhail Pustovoit against Ukraine, the UN Human Rights Committee adopted the V iew s that Mr Pustovoit ’ s placement in a metal cage during his public trial, with his hands handcuffed behind his back, had violated Article 7 of the International Covenant on Civil and Political Rights taken separately, on account of the degrading treatment thereby inflicted on him, and in conjunction with Article 14 (1) of the Covenant, on account of the degrading treatment which had affected the fairness of his trial (paragraphs 9.3 and 10 of the Views).

B. The United Nations Standard Minimum Rules for the Treatment of Prisoners

71 . The Standard Minimum Rules f or the Treatment of Prisoners , adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 , include the following guiding principle concerning instruments of restraint:

“ 33. Instruments of restraint, such as hand cuffs, chains, irons and strait ‑ jackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances:

(a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judic ial or administrative authority ;

... ”

C. International criminal tribunals

72 . T he Rules of P rocedure and Evidence of the International Criminal Tribunal for the f ormer Yugoslavia (Rule 83) and of the International Crimina l Tribunal for Rwanda (Rule 83) provide that instruments of restraint, such as handcuffs, may be used only as a precaution against escape during transfer or for security reasons ; h owever, once the accused appears before the court , instruments of restraint shall be removed.

73 . Article 63 of the Rome Statute of the International Criminal Court provides as follows:

“1. The accused shall be present during the trial.

2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.”

D . Amnesty International

74 . The Amnesty International Fair Trial s Manual state s as follows:

“ 15.3 Procedures impinging on the presumption of innocence

...

Particular attention should be paid that no attributes of guilt are borne by the accused during the trial which might impact on the presumption of their innocence. Such attributes could include holding the accused in a cell within the courtroom ... ”

E . Use of a “ m etal c age ” in courtroom s in the member States of the Council of Europe

THE LAW

I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION

78 . The applicant disagreed, noting , in particular, the small amount of compensation and the lack of its connection with the length of the proceedings. He emphasised that a federal law of 30 April 2010, which introduced the possibility of obtaining compensation for a violation of the right to a hearing within a reasonable time, had come into force after the rehabilitation proceedings.

80 . In the present case, no such plea of inadmissibility had been made by the Government in their observations before the Chamber took its decision as to the admissibility of the application. The Government submitted their observations on the admissibility of the application on 18 February 2009. The rehabilitation proceedings came to an end on 30 March 2010 (see paragraph 5 2 above) . There was nothing to prevent the Government from raising their plea of inadmissibility , prompted by the outcome of the rehabilitation proceedings, before the Chamber , which ruled on the admissibility and merits of the application more than two years and eight months later on 11 December 2012.

81 . Furthermore, in his letter of 10 February 2 011, received by the Court on 2 March 2011, the first applicant informed the Court of the outcome of the rehabilitation proceedings and enclosed a copy of the relevant court judgments. The President of the Secti on decided, pursuant to Rule 38 § 1 of the Rules of Court, that the applicant ’ s submissions should be included in the case file for the consideration of the Court , and transmitted them to the Government f or information on 10 March 2011, well before the Chamber ’ s examination of the admissibility of the application.

83 . T he Government ’ s preliminary objection must therefore be rejected .

I I . ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

84 . T he applicants complained about their confinement in a metal cage in the courtroom before their trial court . They alleged that such confinement amounted to degrading treatment prohibited by Article 3 of the Convention, which provides as follows :

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

A. The six-month rule and the scope of the Court ’ s examination

B . The parties ’ submissions to the Grand Chamber

1. The Government

88 . The Government submitted that in the Soviet Union a dock for a criminal defendant in a courtroom resembled a rostrum. A metal “grid” was first used during the trial of notorious serial killer A. Chikatilo in 1992 in order to protect the defendant from the relatives of his many victims.

89 . T he “ metal barriers” in courtrooms had been introduced in Russia in 1994, in accordance with a joint circular of 3 February 1993 issued by the Ministry of Justice of the Russian Federation, the Supreme Court of the Russian Federation and the Ministry of the Interior of the Russian Federation (see paragraph 5 5 above), as a response to a crime wave in the aftermath of the break - up of the Soviet Union and at the time of the reorganisation of the State system . The measure had pursued the purpose of preventing defendants in criminal proceedings from absconding or attacking escort officers , judges, witnesses and victims, since the number of such incidents had risen, as well as ensuring the safety of visitors in courtrooms .

90 . According to the official statistics of the Ministry of the Interior of the Russian Federation, the Ministry of Justice of the Russian Federation and the CIS (Community of Independent States) Statistical Committee, the crime rate in Russia and the CIS in 1992 , compar ed to the previous year , was up 27% and 24%, respectively . In the same period in Russia the n umber of grave crimes increased by more than 30% , crimes c ommitted by a group by 30% and r obber ies by 66% . In 1994 the total number of persons convicted by final judgments was up 16 . 7% on the previous year and totalled 924,574.

91 . The Government argued that , although the situation ha d since improved, the use of “security barriers” remain ed justified as a means to prevent escapes, to allow judges and prosecutors not to be distracted from their primary duties, to allow victims , witnesses and other participants in proceedings to feel more secure, and to ensure that defendants were protected from the rage of their victims . In addition, defendants w ere not restricted in their movements by wrist or ankle shackles and w ere free to take more comfortable postures . The Government stated that preventing any escape attempt on the part of a defendant in custody was safer than arresting him after escape. They submitted that there were no international instruments which prohibit ed the placement of detained defendants behind “ security barriers ” in courtrooms or which set requirements for the use of such “ barriers ” .

94 . According to the annual statistical reports of the Courts Administration Office at the Supreme Court of the Russian Federation , the percentage of defendants detained on remand out of the total number of defendants on trial before first-instance courts fell from 17.7% or 241,111 persons in 2007 (excluding military courts) to 12.8% or 134,937 persons in 2012.

95 . The Government argue d that the applicants in the present case had been kept in a cage in the courtroom in the interests of public safety and in strict accordance with the domestic legislation. There had been no evidence that their state of health had been poor or required constant medical assistance during the hearings. T he applicants had not been well ‑ known public figures whose appearance in the courtroom behind a “ security barrier ” could have seriously affect ed their reputation. Their trial had not been of a high-profile nature and there was no evidence that , apart from certain local media coverage, it had been widely reported by the media or had been attended by the general public. Moreover, the witnesses and the victims had refus ed to take part in the hearings out of fear of the applicants ’ revenge. The Government expressed doubts that the applicants ’ relatives or acquaintances had been present at any of the hearings, especially since the trial had taken place in Magadan while the applicants came from Si negorye , 500 km away, from wh ere there had been no regular public transport.

96 . The Government argued that the Chamber had clearly underestimated the applicants ’ previous convictions (see paragraphs 9, 10 and 12 above) . They had a history of violent crimes committed in organised groups , a fact which , in the Government ’ s view, even taken alone, was sufficient to confirm the applicants ’ predisposition to violence and the existence of real security risks. In addition to the first applicant ’ s conviction for theft, the Government referred to his conviction for attempted rape of a minor in 1990, robbery in 2001, and his conviction by the Magadan Regional Court in 2011 for being a member of a long-standing large-scale organised criminal group operating since 1990. B oth applicants had also had negative references from the head of the local authority and a district police officer at the ir place s of residence describ ing them as individuals who led an antisocial way of life which manifested itself in abuse of alcohol, lack of employment, links to persons with criminal records and behaviour disrespectful of others . Furthermore, t he applicants were charged with violent crimes .

97 . The Government further contend ed that the references in the detention orders to witnesses ’ fears had been supported by ample evidence , notably witness statements from the preliminary investigation in 2002 ‑ 2003 and from the second trial in 2005-2006. In the Government ’ s view, t he fears of witnesses and victims had related to all four defendants on trial since they had been acting in an organised group.

98 . The Government noted that the applicants had freely and actively participat ed in the proceedings without any signs of fear or embarrassment.

99 . On the basis of the above elements , the Government distinguished the present case from those concerning the use of a metal cage in a courtroom in which a violation of Article 3 had been found by the Court ( they referred to Sarban v. Moldova , no. 3456/05, 4 October 2005; Ramishvili and Kokhreidze v. Georgia , no. 1704/06, 27 January 2009; Ashot Harutyunyan , cited above ; Khodorkovskiy v. Russia , no. 5829/04, 31 May 2011; and Piruzyan v. Armenia , no . 33376/07, 26 June 2012 ), and dr ew similarities with a case in which no violation on account of the use of a cage had been found , namely, Titarenko v. Ukraine , no. 31720/02, §§ 58 ‑ 64, 20 September 2012 .

102 . The Government submitted that being a n ordinary measure introduced about twenty years ago and applied to all defendants in custody, the “ security barrier ” used in the applicants ’ case could not have influenced the jury at their trial or undermined the presumption of innocence. Besides, the presiding judge had drawn the jurors ’ attention to the fact that the applicants ’ remand in custody did not constitute evidence of their guilt. Furthermore, the first applicant had been acquitted on all the charges and the second applicant on most of the charges brought against him .

2. The applicant s

103 . The applicants submitted that the keeping of suspects and accused detained on remand in a metal cage in a courtroom had been a blanket practice applied irrespective of individual circumstances or the nature of the offences involved, be it economic crime, murder, theft or a petty offence, in proceedings before courts of general jurisdiction or Justices of the Peace, and irrespective of whether or not a person had a criminal record .

104 . According to the applicants, t hat practice was illegal. The y explained that the orders of the Ministry of the Interior , which provided for the use of a cage in a courtroom (see paragraphs 56-57 above) , had never been published. By virtue of Article 15 of the Constit ution of the Russian Federation, which prohibited the application of any normative instruments touching upon human rights and freedoms unless they were published, those orders should not have been applicable or relied upon by the Government before the Court . The construction rules of 2000 and 2013 (see paragraphs 62-66 above) were not law s adopted by the legislative authority and could not , therefore, impose limitations on the exercise of human rights. The relevant domestic law for the assessment of the legality of the use of a cage during court proceedings was the Constitution and the Code of Criminal Procedure. Neither provide d for the possibility of keeping persons in a cage in the courtroom.

105 . The applicants emphasised that human dignity was an absolute value which could not be undermined for any reason and should be protected by the State irrespective of a person ’ s background, criminal record or any other characteristics. T herefore, in their opinion, the Government had erred in asserting that the applicants ’ placement in a cage had not amounted to degrading treatment because they were not public figures or well ‑ known persons , and because their trial had not attracted significant public attention or extensive media coverage .

107 . The applicants ’ confinement in a cage , as if they were dangerous criminals who had already been found guilty , had served as an instrument of unlawful influence upon the jury , in breach of the rules governing jury trials , which prohibited any actions capable of undermining the presumption of innocence and, in particular, any submissions which might cause jurors to be prejudice d against defendants, by referring for example to defendants ’ previous convictions or to the fact that they were chronic alcoholics or drug addicts, unless that information was necessary for establishing the elements of the offences of which they were accused. In view of the foregoing , the applicants could not have a fair trial respecting the principle of the presumption of innocence. They had never pleaded guilty and it had been necessary to overcome the jury ’ s prejudice in order to prov e their innocence. Being held in a cage before their judges who were to decide their fate, the applicants had felt helplessness, inferiority and anxiety during the entire trial. Such harsh treatment had had an impact on their power of concentration and mental alertness during the proceedings concerning as they did such an important issue as their liberty.

108 . The applicants , like “ monkeys in a zoo ” , had been exposed in a cage to the general public, including the large number of candidate jurors and witnesses from the same settlement, and the applicants ’ family members and acquaintances who had attended the hearings. C ontrary to the Government ’ s submissions , t here had been a regular bus service between the applicants ’ settlement and Magadan where the trial took place. T he applicants ’ trial had been reported by the local television in 2002-2004 .

110 . As to the applicants ’ criminal records, in imposing on the first applicant a conditional sentence in the judgment of 15 June 2001 and thereby not depriving him of liberty , the court had acknowledged that he had not represented a danger to society. As to the first applicant ’ s conviction in 2011, it was unclear how it could have justified his placement in a cage several years earlier .

111 . As regards the witnesses ’ fears referred to by the Government, the grounds for those alleged fears and the circumstances in which the statements submitted by the Government had been taken had never been the subject of any examination. Furthermore, before being rearrested on 6 December 2005 Mr Slyadnev had been free for one year and five months following his acquittal on 22 June 2004. During that period there had been nothing to justify those fears, that is, nothing to suggest that he had threatened the victims and witnesses or committed any other unlawful acts against them. In the decision of 8 February 2005 the Magadan Regional Court had imposed on the applicants an undertaking not to leave their place of residence as a preventive measure , which restriction had lasted ten months. The court and the prosecution , which had not appealed against that decision , had not considered that the applicants posed a danger to society. There had been no grounds on which to change that preventive measure to detention on remand on 6 December 2005 . Mr Slyadnev had been detained on the same grounds as his co-defendant Mr Grishin . T he Court ’ s find ing of a violation of Article 5 § 3 of the Conve ntion in the case brought by Mr Grishin and, in particular, the finding of the lack of grounds for the witnesses ’ fears, were applicable to the present case (see Mikhail Grishin v. Russia , no. 14807/08, §§ 147-156, 24 July 2012). If the detention on remand lacked “relevant and sufficient” reasons and, therefore, could not be considered lawful, the placement in the cage could not be considered lawful either, following the Government ’ s logic. Nothing pointed to improper behaviour on the part of the applicants during the trial in question.

112 . The applicants concluded that the Government had failed to submit evidence that the security risks invoked by them had actually existed and that the applicants might have abs conded or resorted to violence. There had been no serious grounds to fear unlawful behaviour on their part in the courtroom. The ir placement in a metal cage during the hearing of their case by the Magadan Regional Court had therefore not been justif ied by security considerations and had amounted to degrading treatment in breach of Article 3. Such treatment, comparable to the treatment of wild animals kept in metal cages in a circus or zoo, had intimidated the applicants and humiliated the m in their own eyes and in those of the public and aroused in them a sense of fear, anguish and inferiority; it had also undermined the principle of the presumption of innocence. The recently initiated process of replacing metal cages in courtrooms with glass cabins showed in itself Russia ’ s acknowledgment that the use of metal cages had constituted a breach of human rights.

C . The Court ’ s assessment

1. Relevant p rinciples

2. Approach in previous similar cases

119 . The Court has examined in recent years several cases concerning the use of metal cages in the courtroom from the standpoin t of Article 3. The Court viewed the treatment in question as “stringent” and “humiliating” (see Ramishvili and Kokhreidze , cited above , § 102; Ashot Harutyunyan , cited above , §§ 128 ‑ 129 ; and Piruzyan , cited above, §§ 73 ‑ 74 ). It assessed whether such treatment could be justified by security considerations in the circumstances of a particular case, such as the applicant ’ s personality (see Ramishvili and Kokhreidze , cited above, § 101), the nature of the offences with which he was charged, though this factor alone was not considered sufficient justification (see Piruzyan , cited above, § 71), his criminal record (see Khodorkovskiy , cited above , § 125 , and Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, §§ 485-486, 25 July 2013), his behaviour (see Ashot Harutyunyan , cited above, § 127) or other evidence of the risk to safety in the courtroom or the risk of the applicant ’ s absconding (ibid.). It also took into account such additional factors as the presence of the public and media coverage of the proceedings (see Sarban , cited above, § 89 , and Khodorkovskiy , cited above, § 125 ).

120 . It was the unjustified or “excessive” use of such a measure of restraint in particular circumstances which led the Court to conclude, in the above cases, that the placement in a metal cage in the courtroom amounted to degrading treatment. However, in one case the Court found by a majority that there had been no violation of Article 3 (see Titarenko , cited above, §§ 58-64 ).

3. The Chamber judgment

121 . The Chamber followed the approach that had been adopted in the above ‑ cited cases (see paragraph 11 9 above). H aving found no evidence capable of giving serious grounds for the fear that the applicants would pose a danger to order and security in the courtroom, or a danger that they would resort to violence or abscond, or that there was a risk for their own safety, it held that their placement in a metal cage in the courtroom had not been justified and , therefore, amounted to deg rading treatment (see paragraph 70 of the Chamber judgment).

4. The Grand Chamber ’ s assessment

123 . Recourse to metal cages in courtrooms applied to each and every suspect and accused detained on remand in Russia (see paragraphs 57 and 9 3 above). It remains an approved practice in today ’ s Russia without any commitment on the part of the State to abandon the use of metal cages (see paragraphs 65-66 and 101 above). The conditions for remanding persons in custody (see paragraphs 67-69 above) and the Government ’ s statistics – 17.7% or 241,111 defendants in custody in 2007 and 12.8% or 134,937 defendants in custody in 2012 (see paragraph 9 4 above) – illustrate the scale of that practice.

124 . The Court notes, in particular, that such practice was regulated by an unpublished ministerial order (see paragraphs 57 and 61 above). Such fact is highly problematic in itself, given the fundamental importance of the rule of law in a democratic society which presupposes the accessibility of legal rules (see, for example, Silver and Others v. the United Kingdom , 25 March 1983, § § 86-87, Series A no. 61 ).

125 . The Court observes , on the basis of photographs of a courtroom at the Magadan Regional Court, that the applicants were confined in an enclosure formed by metal rods on four sides an d a wire ceiling (see paragraph 48 above), which can be described as a cage . The applicants were guarded by armed police guards wh o remained beside the cage (see paragraph 49 above).

128 . The Court will therefore first examine whether the minimum level of severity referred to in paragraph 127 above has been reached in the circumstances . In doing so, it will have regard to the effects which the impugned measure of restraint had on the applicants .

130 . T he Court further observes that the applicants were subjected to the impugned treatment during the entire jury trial before the Magadan Regional Court which lasted more than a year with several hearings held almost every month.

132 . The Court notes that the United Nations Human Rights Committee found recently that keeping a handcuffed defendant in a metal cage during his public trial amounted to his degrading treatment, which also affected the fairness of his trial (see paragraph 70 above). The United Nations Standard Minimum Rules for the Treatment of Prisoners and the Rules of Procedure of international criminal tribunals provide, with regard to certain instruments of restraint , that they may be used only as a precaution against escape during a transfer, provided that they are removed once the accused appears before a court (see paragraphs 71 and 72 above). T he Amnesty International Fair Trials Manual provides that holding the accused in “a cell within the courtroom” might impact upon the presumption of innocence (see paragraph 74 above).

137 . The Court does not consider that the use of cages (as described above) in this context can ever be justified under Article 3 (see paragraph 138 below) as the Government have sought to show in their submissions with reference to an alleged threat to security (see paragraph 126 above). On this latter point, in any event, the Court does not accept that such a threat has been substantiated. It observes that the Magadan Regional Court never assessed whether the applicants ’ physical restraint was at all necessary during the hearings. Moreover no reasons were given for keeping the applicants in a cage. Nor can those reasons be found in court detention orders, contrary to the Government ’ s submissions that the applicants posed a threat to witnesses , and that it was this threat that warranted their detention on remand. T he first applicant was not remand ed in custody for the duration of the third trial. He was detained on remand in unrelated proceedings for reasons that are not known (see paragraphs 34 and 46 above). The second applicant ’ s detention was ordered by the same court decisions as those which the Court has examined in the case of the applicants ’ co ‑ defendant and found to lack “relevant and sufficient” reasons for detention on remand to be compatible with Article 5 § 3 of the Convention, and, in particular, to lack reasons which would show the risk of retaliation against, or pressure on , the witnesses now alleged by the Government (see Mikhail Grishin , cited above, §§ 149-150). That conclusion is fully applicable to the present case , and there is nothing in the Government ’ s submissions to the Grand Chamber which would warrant departing from it. Nor can the accusations that the applicants had committed violent crimes or their previous convictions – some of them with conditional sentences – six or more years before the trial in question, or the first applicant ’ s subsequent conviction, be reasonably considered to support the Government ’ s submissions in this respect . As to the negative references referred to by the Government (see paragraph 96 above) , they do not suggest that the applicants ’ personalities were such as to require their physical restraint during their trial; and the second applicant also had positive references from the administrations of his remand centre and prison (see paragraph 44 above).

II I . ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

140 . The applicants also complained that the length of the criminal proceedings against them had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads in the relevant part as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

141 . The Government stated that they did not contest the Court ’ s findings in its final judgment in the case of Mikhail Grishin in respect of the length of the same criminal proceedings ( see Mikhail Grishin , cited above , § § 170-184 ).

143 . In its judgment the Chamber came to the conclusion that the length of the proceedings against the applicants had been excessive and failed to meet the “reasonable time” requirement , in breach of Article 6 § 1 (see paragraphs 89-90 of the Chamber judgment). It held as follows:

“76. 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 following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 ‑ II).

77. The Court observes that the case was very complex. It comprised more than ten counts of serious crimes and four accused. It involved more than seventy victims and witnesses, many of whom resided in remote settlements situated more than 500 kilometres away from Magadan where the trial was held. Numerous expert reports were ordered and examined in the course of the trial.

78. The preliminary investigation in the case lasted less than a year. During that time the second applicant deliberately delayed the examinat ion of the case file between 20 May and 13 August 2003 ...

79. The applicants and their co-defendants, who were all represented by lawyers, chose a jury trial. The case was considered by a jury court three times, as the Magadan Regional Court ’ s judgment was twice set aside on appeal by the Supreme Court of the Russian Federation.

80. On the first occasion it took the Regional Court nine months to hold the jury trial and deliver its judgment in June 2004, when the applicants, who had been detained on remand, were acquitted and released. During that time the hearing was adjourned for about four weeks at the request of the co ‑ defendants, and for two weeks when one of the defence lawyers could not attend. It then took the Supreme Court six months to examine the case on appeal.

81. The Court considers that up to that point there had been no delays attributable to the authorities.

82. On the second occasion, the case was pending before the Regional Court for two years after its first judgment had been qu ashed by the Supreme Court on 7 December 2004 on the ground that some of the jurors had concealed their family members ’ criminal records at the time of their selection and that the presiding judge had failed to sum up the evidence properly.

83. During the first year it took the Supreme Court three months to quash on appeal the Regional Court ’ s erroneous decision to remit the case to the investigating authority.

85. The trial finally started in December 2005, when the applicants were again detained on remand, and it ended a year later. During this time the hearing was adjourned for two months and twenty days for the jurors ’ summer holidays, after which the parties had to repeat their pleadings, which took an additional month. The Court notes that the reason for the jurors ’ summer holidays was given as the particularity of working in the conditions of the Extreme North of the country, a situation of which the applicants ’ lawyers should have been aware, and of which the jurors had warned the parties and the court at the time of their selection. The Court further notes that in the third set of proceedings the hearing was adjourned for a similar break for a shorter period of time – one month and a half – and thus finds no evidence in the case file that the first delay was entirely justified.

86. The appeal against the Regional Court ’ s second judgment was examined in six months, and on 6 June 2007 the judgment was quashed, this time on the ground, in particular, that the defendants and their lawyers had abused their rights and violated the jury trial procedure in an attempt to influence the jurors ’ verdict. They thereby contributed to the resultant delay in the proceedings.

87. For a year and nine months, until the third judgment was delivered, and while the second applicant continued to be held on remand, the case lay dormant for three months before the Regional Court opened the proceedings in September 2007. Another five months passed before the jury was formed and the trial could begin, which then lasted for more than a year. The hearing was adjourned for about a month owing to a co-defendant ’ s illness. The appeal against the third judgment was examined in four months; on 23 July 2009 the appeal was rejected and the judgment was upheld.

88. Even though there were some delays for w hich the applicants or their co ‑ defendants were responsible, and which do not engage the State ’ s responsibility, there were significant delays attributable to the State during the period when the case was pending before the trial court for the second and the third time which amounted to at least a year, and during that time the applicants were detained on remand, so that particular diligence was required on the part of the domestic courts to administer justice expeditiously (see Kalashnikov , cited above, § 132). While taking into account the complexity of the case and the difficulties which the Magadan Regional Court faced, the Court reiterates that the State remains responsible for the efficiency of its system, and the manner in which it provides for mechanisms to comply with the ‘ reasonable time ’ requirement – whether by automatic time-limits and directions or some other method – is for it to decide. If a State allows proceedings to continue beyond the ‘ reasonable time ’ prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay (see Blake v. the United Kingdom , no. 68890/01, § 45, 26 September 2006).”

I V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

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

A . Damage

147 . The first applicant claimed 78,000 euros (EUR) in respect of non ‑ pecuniary damage and EUR 2,000, representing the alleged loss of an unemployment allowance during the criminal proceedings against him, in respect of pecuniary damage. The second applicant claimed EUR 15,000 in respect of non ‑ pecuniary damage and 2,000,000 Russian roubles ( RUB ) , that is about EUR 44,000 , representing the alleged loss of employment income during his detention on remand, in respect of pecuniary damage.

148 . The Government contested the claims.

150 . As to non-pecuniary damage, having regard to the violations of the Convention found and making its assessment on an equitable basis, the Court awards each applicant EUR 10 , 0 00 under this head.

B . Costs and expenses

152 . The Government contested these claims.

153 . According to the Court ’ s case-law, to be awarded costs and expenses the injured party must have incurred them in order to seek prevention or rectification of a violation of the Convention, to have the same established by the Court and to obtain redress therefor. It must also be shown that the costs were actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Jalloh , cited above , § 133).

155 . Having regard also to the fact that legal aid has been granted to the applicants , and making its own assessment, the Court considers it reasonable to award , in respect of the proceedings before it , the amount of EUR 2,000 for each of three lawyers ’ work, namely EUR 2,000 to the first applicant and EUR 4,000 to the second applicant, plus any tax that may be chargeable to them .

C . Default interest

FOR THESE REASONS, THE COURT , UNANIMOUSLY ,

1. Dismisses the Government ’ s preliminary objection;

2. Holds that the situations concerning the applicants ’ confinement in a cage during the first and second trials fall outside the scope of its examination ;

3 . Holds that there has been a violation of Article 3 of the Convention;

4 . Holds that there has been a violation of Article 6 § 1 of the Convention;

5 . Holds

(a) that the respondent State is to pay, within three months, the following amounts , to be converted into Russian roubles at the rate applicable at the date of settlement:

( i ) EUR 10 , 0 00 ( ten thousand euros) to each applicant , plus any tax that may be chargeable , in respect of non ‑ pecuniary damage;

(ii) EUR 2,000 ( two thousand euros) to the first applicant and EUR 4,000 (four thousand euros) to the second applicant, plus any tax that may be chargeable to the applicants, 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;

6 . Dismisses the remainder of the applicants ’ claim s for just satisfaction.

Done in English and in French , and delivered at a public hearing in the Human Rights Building, Strasbourg, on 17 July 2014 .

Michael O ’ Boyle Dean Spielmann Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Joint concurring opinion of Judge s Raimondi and Sicilianos ;

(b) Joint concurring opinion of Judge s Nicolaou and Keller;

(c) Concurring opinion of Judge Silvis.

D . S . M . O ’ B .

JOINT CONCURRING OPINION OF JUDGES RAIMONDI AND SICILIANOS

(Translation)

1. We unreservedly share all the decisions taken by the Court ’ s Grand Chamber in this important case. We nevertheless feel the need to append a short concurring opinion to the judgment as a result of our hesitations concerning the Court ’ s reasoning in dismissing the Government ’ s preliminary objection that the first applicant lacke d victim status (see paragraphs 77-83 of the judgment).

2. In their observations before the Grand Chamber, the Government had argued that the first applicant, as he had been acquitted on all the charges and had received compensation following a subsequent rehabilitation procedure, could no longer claim to be a victim of the violations which he alleged, under Article 3, on account of his placement in a metal cage in the courtroom, and under Article 6, on account of the length of the proceedings against him (see paragraphs 50-52).

3. It is quite clear, however, that neither the compensation for pecuniary damage awarded to the first applicant by the Regional Court (see paragraph 51), nor that awarded to the s ame applicant in respect of non ‑ pecuniary damage by Madagan Town Court in a decision upheld by the Regional Court (see paragraph 52), imply any recognition of the violation by the Russian Federation of Articles 3 and 6 § 1 (length of proceedings) which the Court was called upon to examine.

4. Consequently, the criteria laid down in the Court ’ s case-law for it to recognise a loss of victim status, namely, that the national authorities must have acknowledged, and then afforded sufficient redress for, the breach of the Convention (see Eckle v. Germany , 15 July 1982 , § 66 , Series A no. 51 ), are not satisfied in the present case. The objection was thus ill-founded.

5. The Court has in fact preferred to dismiss the objection on the basis that it was out of time, thus relying on Rule 55 of the Rules of Court, whereby any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 or 54, as the case may be.

6. In particular, the Court noted that in the present case the Government had failed to include this preliminary objection in their observations prior to the Chamber ’ s ruling on the admissibility of the application. They had submitted their observations on this question on 18 February 2009. Moreover, the rehabilitation procedure had ended on 30 March 2010 (see paragraph 52). There had been nothing to prevent the Government, in the light of the outcome of that procedure, from raising their plea of inadmissibility before the Chamber, which had ruled on the admissibility and merits of the application on 11 December 2012, over two years and eight months later.

7. The Court found that, in the absence of any exceptional circumstances that could have dispensed the Government from raising this objection in a timely manner, they were estopped from arguing at that stage that the first applicant lacked victim status. Three authorities are cited in th is context ( Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II ; Prokopovich v. Russia , no. 58255/00, § 29, ECHR 2004-XI; and Andrejeva v. Latvia [GC], no. 55707/00, § 49, ECHR 2009).

8. In citing those three judgments, the Grand Chamber appears to place the analysis of the question of the possible loss of victim status on the same plane as the analysis of another ground of inadmissibility – a failure to exhaust domestic remedies. Two of the three judgments cited, namely Sejdovic and Prokopovitch , concern the latter question, whereas Andrejeva does concern the question of the possible loss of victim status.

9. Th e se two grounds of inadmissibility do not follow the same rule as regards the Court ’ s power to act of its own motion.

10. With regard to victim status, there is no d oubt that, notwithstanding Rule 55, the Court may at any time raise that question of its own motion, regardless of whether the respondent Government have filed such an objection (see Micallef v. Malta [GC], no. 17056/06, § 36, ECHR 2009; Konstantin Markin v. Russia [GC], no. 30078/06, § 79, ECHR 2012; and M.A. v. Cyprus , no. 41872/10, § 115, ECHR 2013), because it is a question of ordre public which relates to the Court ’ s jurisdiction.

11. By contrast, with regard to a failure to exhaust domestic remedies, the Court ’ s power to act of its own motion is more limited. If the respondent Government are late in making such a plea of inadmissibility, the Court will examine this question only if there are special circumstances capable of dispensing them from raising this objection in a timely manner (see Assanidze v. Georgia [GC], no. 71503/01, § 126 , ECHR 2004 ‑ II ).

12. These are the reasons why we would have preferred the Court to dismiss the objection as to victim status for being ill-founded , or at least to differentiate in its reasoning the situation at hand from that of an alleged failure to exhaust domestic remedies.

JOINT CONCURRIN G OPINION OF JUDGES NICOLAOU AND KELLER

1. We wholeheartedly agree with the majority ’ s finding that Article 3 has been violated in this case. We would, however, respectfully clarify the reasoning by which we arrive at this conclusion.

2. First, we would like to comment on the concept of cage. The Grand Chamber judgment is limited to the use of a metal cage as described in paragraphs 48 and 125. We would note that Russia and other countries that have used metal cages in courtrooms are developing a tendency to replace them with glass enclosures or “organic glass screens” (see paragraph 75 of the judgment). The present judgment does not apply to such security measures. However, we would stress that such “cages” might raise issues under the requirement of procedural fairness in Article 6 § 1 and the presumption of innocence in Article 6 § 2 of the Convention (compare the Views of the Human Rights Committee in Kovaleva and Kozyar v. Belarus , Communication No. 2120/2011, Views of 29 October 2012, CCPR/C/106/D/2120/2011, § 11.4 ).

3. Second, we consider it necessary to address the absolute nature of Article 3, in the light of which paragraph 124 of the present judgment should be read. It is the Court ’ s established case-law that Article 3 enshrines an absolute right. [1] Hence, the provision is not only non- derogable , as is evident from Art icle 15 § 2 of the Convention, but it also does not permit exceptions, regardless of the conduct of the victim or the circumstances ( see Gäfgen v. Germany [GC] , no. 22978/05, § 87 , ECHR 2010 ). Accordingly, while the context of a given treatment or punishment may be taken into consideration in determining whether the threshold of severity required for a violation of Article 3 has been reached, it cannot provide a justification for those acts or omissions that reach this threshold ( see Ireland v. the United Kingdom , 18 January 1978, § 163, Series A no. 25 , and Saadi v. Italy [GC] , no. 37201/06, § 127, ECHR 2008 ). There is, in short, no room for a margin of appreciation or a justification for ill-treatment re aching the threshold of Article 3. There is room for relativity only on the question whether the threshold of severity has been reached for a violation of Article 3, not whether treatment or punishment that reach this threshold constitute a violation of the Convention ( see Ireland v. the United Kingdom , cited above, § 162). [2]

4. Given the impossibility of justifying ill-treatment that reaches the threshold of severity required for a violation of Article 3, we consider it unfortunate that the judgment, in paragraph 124, pays so much attention to the legal basis for the use of the cage in courtrooms and suggests that its insufficiency is, in the present case, a relevant factor. This paragraph could be misunderstood, a contrario , as suggesting that a sufficient legal basis could have somehow justified the alleged violation of Article 3. We consider it essential that no such impression be conveyed. The existence of a sufficient legal basis is one condition of justifying an interference with Ar ticles 8–11 of the Convention, which explicitly permit such justifications in their respective second paragraphs. As no justific ation is possible under Article 3, paragraph 124 of the present judgment must be read as an argument ad abundantiam . In other words, it must be taken as a passing comment on the problematic nature of regulating court proceedings by unpublished orders of a general nature. In no event should this paragraph be read as meaning that a sufficient legal basis could ever legitimi s e acts otherwise contrary to Article 3 of the Convention (compare, in the same vein, the Concurring Opinion of Judge Bratza in the case of Jalloh v. Germany [GC] , no. 54810/00, ECHR 2006-IX, arguing that the majority ’ s consideration of whether the forced administration of emetics was “necessary” detracted from the absolute nature of Article 3 ).

5. In paragraph 128 of the judgment, the Court be gins the analysis under Article 3 by correctly asking whether the minimum threshold of severity required under that provision has been reached . However, it then brings into play the presumption of innocence and the fairness of the proceedings in paragraphs 131–134. Whilst acknowledging that these issues might be serious (see paragraph 2, above), we regard their inclusion in the examination under Article 3 to be misplaced.

6. As to security in the courtroom, paragraph 137 should not be read as maintaining the possibility, however small, of justifying the use of metal cages in courtrooms . Other means, consistent with the dignity of the accused, are possible and should be used instead. We draw attention to the principal finding of the Court, which is made very clear in paragraph 138 of its judgment: the use of metal cages in the courtroom is per se incompatible with Article 3.

7. The Court ’ s emphasis on the presumption of innocence in paragraphs 131–134 of the present judgment represents yet another argument ad abundantiam : while only Article 3 was invoked in the present case, the placement of accused individuals in cages for trial could conceivably, in certain circumstances, raise an issue under Article 6 § 2 of the Convention. The fact that the Court has noted this possible problem, however, does not mean that paragraphs 131–134 are relevant to its finding of a violation under Article 3. The examination of alleged violations of Article 6 § 2 is different from that under Article 3, and the two should be meticulously kept separate.

8. To conclude, while agreeing with the Court ’ s finding in this case, we are of the opinion that the present judgment must be understood in the light of the considerations set out above. In particular, no part of this judgment should be understood as undermining the absolute nature of Article 3 by permitting exceptions from that provision. It is essential that there be no doubt about the fact that Article 3 is violated in all instances in which the severity of ill-treatment inflicted reaches the level of severity that constitutes the threshold for its application.

CONCURRING OPINION OF JUDGE SILVIS

Holding defendants in metal cages before the court during trial amounts to degrading treatment in violation of Article 3 of the Convention. I certainly agree with th e Court ’ s judgment. Modern developments in courtroom safety have eroded old justifications for using cages. While such “caging” persists, despite the lack of manifest functional necessity, a latent function has thus become apparent. By presenting defendants in a cage, they are symbolically humiliated and portrayed as members of an inferior breed compared to ordinary humans. Therefore human dignity is at the heart of the matter, as the Court well recognises.

Although I share the opinion that this is a just judgment in essence, I have some difficult y following all of its wording. My concern is that the Court ’ s reasoning could be understood as allowing in principle some possible justification within the scope of absolute rights. A similar concern is very well expressed in the concurring opinion of Judges Keller and Nicolaou . I would like to draw attention to the sequence in the Court ’ s reasoning. The Court first, clearly and unsurprisingly, holds in paragraph 127 that Article 3 prohibits in absolute terms torture and inhuman or degrading treatment or punishment, which is why there can be no justification for any such treatment. In paragraph 136 the Court concludes that the minimum level of severity has been reached. In the light of this assessment I find it confusing that the Court then holds in paragrap h 137 that the use of metal cages can never be justified under Article 3 of the Convention. How could it be? This message is either void and should therefore have been omitted or it is otherwise worrisome at this stage in the Court ’ s reasoning. Article 3 guarantees absolute rights. Does it then make sense even to raise the possibility of justification once the measure has entered its scope? To re consider such a possibility at that stage of the reasoning, even though the Court answer s in the negative here, could weaken the understanding of its concept of absolute rights. [3]

The fact that some relativity is allowed for in assessing the severity of dysfunctions in treatment, before they are found to be within the scope of an absolute right, is a different matter. That would not be contrary to the concept of absolute rights, provided the assessment is faithfully performed in view of the underlying values. It has been observed, however, that there is seemingly a subtle but new shift with regard to the application of the principle of proportionality and Article 3. [4] That conclusion might be drawn because there is no clear line observed between what is allowed for in the assessment and what is out of the question after the threshold of Article 3 has been reached. The reference to forms of “ unjustifiable ” ill-treatment would indicate that subjective processes are involve d in the application of Article 3 , going beyond the assessment of sufficient severity for the measure to fall within the scope of that Article. Th is may cause understandable concern in that it creates an impression, albeit false and unintended, that certain breaches of Article 3 could on occasion be justified.

I have a further point for consideration. In the assessment as to whether the threshold of ill-treatment has been reached, it is common for subjective as well as objective factors to play a role. By generali s ing the finding that holding defendants in metal cages before the court during trial is a prohibited form of degrading treatment, subjective factors for the assessment of such a violation of Article 3 have become less relevant. I welcome such a generali s ation , making clear what standards should be met. In the light of this understanding , I would have welcomed a n even lesser focus on whether the applicants must have suffered from being caged before the court. They may have suffered intensely. But suppose they had not, being blessed perhaps with extraordinary mental coping capacities or owing to a sheer lack of sensitivity. [5] Would that have made a difference? I do n o t think it should have done . Holding a defendant in a metal cage has a strong theatrical dimension, staging a ritual of humiliation. [6] Where it is the State ’ s obligation to set the scene for a fair trial , such humiliating exposure of defendants before the court constitutes degrading treatment within the meaning of Article 3.

[1] . Natasa Mavronicola and Francesco Messineo , “ Relatively A bsolute ? The Undermining of Article 3 ECHR in Ahmad v UK ” , (2013) 76(3) Modern Law Review 589-603 , at 592; D avid J. Harris, M ichael O’Boyle, E d P. Bates and C arla M. Buckley, Harris, O’Boyle & Warbrick : Law of the European Convention on Human Rights (Oxford: Oxford University Press 2009 ) , at 69.

[2] . Natasa Mavronicola and Francesco Messineo , cited above , at 593 et seq .

[3] . See Alan Gewirth , “Are There Any Absolute Rights?” (1981) 31 The Philosophical Quarterly ; Michael K. Addo and Nicholas Grief, “Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?”, in European Journal of International Law 9 (1998), 510-524 ; Natasa Mavronicola , “What is an ‘absolute right’? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights”, in Human Rights Law Review ( 30 November 2012) ; Yukata Arai-Yokoi, “Grading Scale of Degradation: Identifying the Threshold of degrading Treatment under Article 3 ECHR”, in Netherlands Quarterly of Human Rights , Vol. 21/3, 385-421, 2003 .

[4] . See Martin Curtice , Advances in psychiatric treatment (2010), vol. 16, 199–206 , doi : 10.1192/apt.bp.109.006825 , p. 204, BOX II.

[5] . Compare the Commission Report in the “Greek case” (applications nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission’s report of 5 November 1969, Yearbook 12 , p. 501 ) : “ It appears from the testimony of a number of witnesses that a certain roughness of treatment of detainees by both police and military authorities is tolerated by most detainees and even taken for granted. Such roughness may take the form of slaps or blows of the hand on the head or face. This underlies the fact that the point up to which prisoners and the public may accept physical violence as being neither cruel nor excessive, varies between different societies and even between different sections of them. ”

[6] . See Hannes Kuch , “ The Rituality of Humiliation: Exploring Symbolic Vulnerability ”, in P. Kaufmann et.al. ( eds ), Humiliation, Degradation, Dehumanization , Library of Ethics and Applied Philosophy, 24 (Springer 2011), Ch. 4.