FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2937/04 by Konstantin Eduardovich VINOKUROV against Russia and Ukraine

The European Court of Human Rights (Fifth Section), sitting on 16 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mr R. Maruste , Mr A. Kovler , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 24 November 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Konstanti n Eduardovich Vinokurov, is a Ukrainian national who was born in 1962 and lives in Lugansk.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On 27 September 2001 the applicant, who at that time resided in Russia , was arrested by Russian police pursuant to an international warrant for his arrest issued by the Ukrainian authorities.

On the next day the Ukrainian authorities were informed about the applicant ’ s arrest and were requested urgently to provide legal grounds for his detention. In response the Russian authorities were provided with a copy of a detention order, issued on 5 September 1998 by the Prosecutor of the Leninsky District of Lugansk ( Прокурор Ленінського району м. Луганська ) .

On 2 October 2001 the Prosecutor General ’ s Office of Ukraine ( Генеральна прокуратура України ) made a request to the Prosecutor General ’ s Office of the Russian Federation ( Генеральная прокуратура Российской Федерации ) for the applicant ’ s extradition under the 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (the “Minsk Convention”).

The applicant states that throughout his detention in Russia he was denied access to a lawyer or Ukrainian consul. His relatives were not informed about his detention and his requests for release and political asylum were ignored. He also claims that his extradition was delayed on account of the Ukrainian authorities ’ failure to provide the relevant documents to their Russian counterparts in a diligent manner.

Once in Ukraine on 6 February 2002, the applicant was detained on remand on suspicion of financial fraud. On 5 March 2002 he was charged with theft through abuse of office, financial fraud and forgery .

On 10 July 2002 the Leninsky District Prosecutor ’ s Office of Lugansk submitted the applicant ’ s case to the court for examination on the merits.

On 15 August 2002 the Leninsky District Court of Lugansk ( Ленінський районний суд м. Луганська , hereafter “the Leninsky Court ” ) held a preparatory hearing in presence of the applicant and his lawyer. The court found that the bill of indictment had been drawn up carelessly and needed redrafting. The case file was sent back to the Prosecutor ’ s Office. The court also rejected the applicant ’ s request for release, finding that his detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with a less strict preventive measure.

On an unknown date the applicant ’ s criminal case was again brought before the Leninsky Court . On 4 November 2002 it committed the applicant to stand trial on the above charges and refused the applicant ’ s request for release for the same reasons as before.

On 21 July 2003 the Leninsky Court convicted the applicant of theft through abuse of office, financial fraud and forgery and sentenced him to 1 year, 7 months and 24 days imprisonment, less the time spent in detention pending extradition in Russia and in detention on remand in Ukraine . This so ‑ called “practically served” ( за фактично відбутим ) sentence meant his immediate release. The applicant did not appeal against this judgment.

2. Conditions of the applicant ’ s detention

After his arrest in Russia on 27 September 2001 (see above) the applicant was placed in the Vidnoye Centre for Temporary Detention ( Изолятор временного содержания г . Видное ). On 6 November 2001 he was transferred to the Centre for Pre-trial Detention ( Следственный изолятор hereafter “the SIZO”) no. 50 of the Moscow region where he stayed until 20 January 2002. On 23 January 2002 the applicant was admitted to the Belgorod SIZO.

On 6 February 2002 the applicant was extradited to Ukraine , where he was placed in the Kharkiv SIZO. On 11 February 2002 he was transferred to the Lugansk SIZO, where he remained until his release on 21 July 2003.

The applicant alleges that in all the above penitentiary establishments, he was held in constantly overcrowded cells. Owing to a lack of bunks, the inmates had to sl eep taking turns . The food supplied, sanitary conditions and medical care were poor and insufficient.

According to the applicant inmates suffering from tuberculosis and AIDS-infected and suspects accused of having committed serious offences were indiscriminately held in general cells.

The applicant next states that prison officers verbally and physically abused inmates.

COMPLAINTS

1 . The applicant complained under Article 3 of the Convention about his conditions of detention in the Russian and Ukrainian prisons.

2 . The applicant also complain ed under Article 5 § 1 of the Convention that the Russian authorities had arrested him and held him in detention unlawfully. In this respect he stated that the September 1998 detention warrant could not at the material time serve as a basis for his deprivation of liberty since the Law on Amendments to the Code of Criminal Procedure of 21 June 2001 stripped the Ukrainian prosecutors of their power to order detention.

3 . The applicant further complained under Article 5 § 2 that he had never been informed about the reasons for his arrest.

4 . Relying on Article 5 § 3 the applicant complained that after his arrest he had not been brought promptly before a judge. He also stated that the period of his detention on remand had not been reasonable.

5 . Under Article 6 of the Convention the applicant complained that he had never been informed of the nature of the accusations against him and that during his detention in Russia he had been denied access to a lawyer.

6 . Referring to Article 13 of the Convention the applicant complained that his requests for political asylum had been ignored by the Russian authorities.

7 . The applicant next alleged that in breach of Article 1 of Protocol No. 4 he had been prosecuted for his debts.

8 . Finally the applicant contended that the Russian authorities had infringed his procedural rights guaranteed by Article 1 of Protocol No. 7.

THE LAW

A. Article 3 of the Convention

The applicant complains of the material and sanitary conditions of his detention the Vidnoye Centre for Temporary Detention, the Moscow Regional SIZO no. 50 and the Belgorod SIZO, the Kharkiv SZIO and the Lugansk SIZO. He invokes Article 3 of the Convention, which reads as follows:

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

1. Detention in the Russian detention facilities and the Kharkiv SIZO

The Court recalls that the object of the six month time-limit under Article 35 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant a time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria , judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, §§ 32-33). In cases where there is a continuing situation, the six month period runs from the cessation of the situation (see Koval v. Ukraine (dec.) , no. 65550/01, 30 March 2004).

The Court notes that the present application was lodged on 24 November 2003 , whereas the applicant ’ s detention in the Russian penitentiary establishments ended on 6 February 2002 and in the Kharkiv SIZO on 11 February 2002. It does not appear that the applicant lodged any complaints concerning the conditions of his detention in those facilities after he had been transferred from them (see Khudoyorov v. Russia (dec.) , no. 6847/02, 22 February 2005 and Koval v. Ukraine , cited above) .

It follows that this complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. Detention in the Lugansk SIZO

The Court recalls that according to its established case-law the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective (see Khokhlich v. Ukraine , no. 41707/98, § 149 , 29 April 2003 ) .

The Court emphasises that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. The Court has recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 69).

As regards the exhaustion of domestic remedies in respect of the complaints under Article 3 about the conditions of detention, the Court recalls that in the case of Khokhlich (cited above, § 151) it rejected the Government ’ s argument that the applicant had to lodge a civil action with the domestic courts before being able to file an application under the Convention. The Court found that several complaints about the conditions of detention by the applicant and his mother filed with the governor of the relevant detention facility were sufficient to make the authorities aware of the applicant ’ s situation and to give them an opportunity to examine the conditions of the applicant ’ s detention and, if appropriate, to offer redress. In similar circumstances in the case of Kalashnikov v. Russia ( (dec.), no. 47095/99, ECHR 2001 ‑ XI (extracts) ) the Court was satisfied that the applicant ’ s repeated complaints with the trial court, the Supreme Court, the Prosecutor General and the High Qualification Board of Judges made authorities sufficiently aware of his situation. In Melnik v. Ukraine ( no. 72286/01, § 70, 28 March 2006 ) it was decided that the applicant ’ s complaint to the doctor of the detention facility concerned was sufficient to comply with the requirement of exhaustion of domestic remedies.

In the present case, however, there is no evidence in the case file that the applicant applied to any competent authorities with complaints about his detention conditions in the Lugansk SIZO. Nor did he claim that he had made any oral submission to the competent authorities to this effect.

The Court emphasises that the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, the Court exerting its supervisory role subject to the principle of subsidiarity (see, for example, Z and Others v. the United Kingdom [GC], no. 29392/95, § 103, ECHR 2001-V). This principle requires, inter alia , that the applicant ventilates complaints through any of the above-mentioned channels or any other competent authority or official before bringing them before the Court. Moreover, the Court ’ s subsidiary role under the Convention does not allow it to reach any conclusion as to the reliability of the applicant ’ s contentions unless it has the benefit of the comments of the competent authorities on his complaints.

In the light of the above considerations, the Court finds that the applicant ’ s complaints concerning the allegedly poor conditions of detention in the Lugansk SIZO must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Article 5 § 3 of the Convention

The applicant complained under Article 5 § 3 of the Convention that he had not been tried within a reasonable time or released pending trial. Article 5, in so far as relevant reads as follows:

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

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

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

The Court considers that it cannot, on the basis of the case file, de termine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

C. Remainder of the complaints

The Court has examined the remainder of the applicant ’ s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning allegedly unreasonable length of the applicant ’ s detention on remand (Article 5 § 3 of the Convention) ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President