FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69535/01 by Yevgeniy Viktorovich KOSITSYN against Russia

The European Court of Human Rights (First Section), sitting on 19 October 2006 as a Chamber composed of:

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

Having regard to the above application lodged on 19 February 2001,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yevgeniy Viktorovich Kositsyn , is a Russian national, who was born in 1962 and lives in Kaliningrad . He is represented before the Court by Ms G. Guseva , a lawyer practising in Kaliningrad . The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

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

A. Criminal proceedings against the applicant

1. Investigation into the murder of Ms M.

The applicant ran a real-estate agency in Kaliningrad which mostly dealt with elderly or seriously ill people whishing to sign over their houses in exchange of a life-long rent. In May 1999 he was contacted by Ms M. who proposed him a deal of that kind. On 15 September 1999 Ms M. was killed in her flat: she was hit with a dumb-bell on her head. According to the applicant, he discovered her body but decided not to inform the police out of fear of prosecution. He transported the body to the garage and washed the bloodstains. Then he moved to the flat of Ms M. together with his girlfriend Ms D. He told Ms M. ’ s neighbours that she hade left the city.

In the afternoon of 17 October 1999 the police arrested the applicant on suspicion of murder of Ms M. During the arrest, the police handcuffed the applicant and searched the flat where he lived and his office. The applicant was questioned in relation to the disappearance of Ms M. Ms D., his girlfriend, was questioned as well. As a result the applicant confessed in murder and indicated the place where he had hidden the body. The applicant also signed a statement waiving the right to have a lawyer.

Later in the night the police brought the applicant to the flat of Ms M. where he demonstrated how he had killed her with a dumb-bell. That was filmed and the video record of the “crime re-enactment experiment” was joined to the materials of the case-file. During the experiment the applicant confirmed again that he did not need a lawyer.

According to the applicant, he confessed in murder and waived his right to the lawyer because police investigator Mr O. threatened him. He also claimed that during the search some of his personal belongings had been stolen by the police.

On 20 October 1999 an investigating officer charged the applicant and detained him in remand prison IZ–39/1 in Kaliningrad . According to the applicant, he requested the investigator that Ms D. represented him in the proceedings. However, it was refused on the ground that Ms D. had already been questioned in the capacity of a witness. The applicant was given a professional lawyer to assist him.

In the course of the investigation the police questioned a number of witnesses, commissioned the forensic examination of Ms M. ’ s body and the examination of the dumb-bell that had allegedly served as the instrument of crime.

According to the applicant, on an unspecified date a public prosecutor extended the detention. On 19 December 1999 the applicant complained about this extension to the Central District Court of Kaliningrad. On 24 January 2000 the district court rejected this complaint.

On 21 December 1999 the applicant was administered a blood test in the detention facility hospital. He claimed that it had been done against his will. The test revealed that the blood on the dumb-bell belonged to Ms M. but not to the applicant.

2. The judgment

On 20 April 2000 the Central District Court of Kaliningrad found the applicant guilty of murder of Ms M. As follows from the judgment, the case was examined in an open hearing, under the presidency of a professional judge and with participation of two lay judges.

In the judgment the court relied on the testimonies of Ms M. ’ s three neighbours, the applicant ’ s business partner and his co-worker, given at the trial. None of them, however, was a direct witness of the murder. The court also relied on the applicant ’ s initial statement to the police in which the applicant confessed in murder and described the incident in detail. Mr O., the police investigator who had questioned the applicant, denied before the court that he had put any pressure on the applicant during the first questioning. Mr O. also testified that he had informed the applicant of his right to have a lawyer.

Further, the court relied on the crime re-enactment experiment filmed by the investigative authorities. The court stressed that the applicant did not claim a lawyer at that moment either. The court found that the applicant ’ s account of the incident given during the crime re-enactment experiment coincided with the results of the expert examination of the victim ’ s corpse.

In his oral pleading the applicant insisted that when he had arrived to the flat of Ms M. she had already been dead. However, the court did not accept the applicant ’ s story. In the court ’ s opinion, the applicant ’ s initial statements and the account of the incident given by the applicant during the experiment were reliable, detailed and consistent with the testimonies of other witnesses, whereas his later statements were confused. The court also referred to a number of circumstantial evidence that confirmed the applicant ’ s guilt. As a result, the applicant was sentenced to fourteen years ’ imprisonment.

3. The appeal

The applicant and his lawyer appealed. The applicant did not provide the Court with the text of his brief of appeal; however, from the decision of the court of appeal it follows that the defence raised the following arguments.

First, the applicant insisted that his guilt had not been sufficiently proven at the trial. He pointed at the discrepancies in the testimonies of various witnesses, at various informalities and alleged breaches of law committed by the investigative authorities. However, the court of appeal found that the judgment had had sufficient evidentiary basis and that there had been no serious breaches of procedural law necessitating the re-examination of the case.

Secondly, the applicant claimed that the he had confessed under duress and without a lawyer. He also claimed that the investigator refused to admit Ms D. as his representative. The court of appeal dismissed those arguments. It established that the applicant had signed the waiver and nothing suggested that he had done so under duress. Further, the court of appeal noted that the applicant had never requested to admit Ms D. in the proceedings as his representative. In any event, the applicant had been given a professional lawyer when he had been formally charged. The court of appeal concluded that the applicant ’ s right to legal assistance had not been breached.

Thirdly, the applicant indicated that he had not been given access to the records of the court hearings. He also claimed that he had no full access to the materials of the pre-trial investigation, namely the record of the crime re-enactment experiment. Both those allegations were rejected: the court of appeal established that after the completion of the pre-trial investigation the applicant had been given access to the case-file in its entirety. The court of appeal also established that the applicant was given access to the records of the hearings. In any event, he had failed to contest the accuracy of the record.

Fourthly, the applicant alleged that the policemen had stolen his property during the search. The court of appeal established, referring to the protocol of the search, that no private belongings of the applicant had been seized. The court also noted that the applicant had failed to complain to the prosecution authorities about that fact.

Fifthly, the applicant claimed that the trial court had not been competent to hear his case in a single-judge formation. The court of appeal found that the applicant ’ s case had been examined by a judge acting within his substantive and material competence.

The applicant also complained of the conditions of detention in the pre-trial detention facility. However, the court of appeal found that it had no competence to examine such complaints.

As a result, on 22 August 2000 the Kaliningrad Regional Court in an open hearing upheld the conviction on appeal. The applicant claimed that the hearing before the Regional Court had lasted about five minutes and that his oral presentation had been interrupted by the judge.

B. Conditions in remand prison IZ–39/1

1. The applicant ’ s account

The applicant was detained in remand prison IZ–39/1 from 20 October 1999 to 20 September 2000.

On his admission, he was put in a quarantine cell occupied by young offenders, some of whom had already been convicted. This cell measured 12–13 square metres and housed 14–16 prisoners. Of the eight available bunk beds, only six had bedding. The applicant could sleep three to four hours a day. The window was covered with a metal blind that let through neither light nor fresh air. The air inside was stuffy, the walls bedewed. A 60 watt light bulb on the ceiling stayed on day and night: too dim to read by, too bright to sleep with. The toilet had no  ushing or ventilation. It stood above the  oor exposed to onlookers. Several prisoners had lice, tuberculosis, and syphilis. The cell swarmed with cockroaches, bed bugs, ants, and rats. Sanitary treatment was limited to sprinkling the toilet with chloric water.

In about a week, the prison administration moved the applicant to a cell meant for former policemen. This cell was located in the basement and measured 7 square metres. It housed 8–19 prisoners even though there were only six bunk beds. The prisoners had to sleep in shifts of three to four hours a day. The window was covered with a metal blind with 1 cm holes in it, too small to let through either light or fresh air. There was no ventilation. The walls had a thick dirty and wet concrete coating. A weak filament light bulb stayed on day and night. In one corner of the cell there was a toilet – a concrete cube raised above the  oor . The toilet was not partitioned off the cell, offered no privacy, and lacked  ushing and hydroseal . Above it there was a service water tap used for washing. The dining table stood one metre away from the toilet. The cell swarmed with cockroaches, bed bugs, and ants.

In both cells, the applicant had no bunk bed of his own, no bedding, and no toiletries. A 15-minute shower was available once in a fortnight. Because the cells were constantly overcrowded, and because many prisoners smoked, the applicant stayed immobile in the stuffy air for long hours. Relief came from walks outside, but they were rare and short (30–40 minutes a day), and the yard was also overcrowded (7–14 people on 7–8 square metres). There was no drinking water in the cells. The food was cold, tasteless, and slovenly served. During his stay in the prison the applicant lost 10 kilograms of his usual 60.

Along with his own description, the applicant submitted three witness statements by persons who had been detained in the prison about the same time as the applicant. Mr Anatoliy Kutsayev stayed in the prison from December 1998 to August 2000 and confirmed the applicant ’ s description of the prison. Mr Mikhail Timonin stayed in the prison from February 1996 to October 1999. He confirmed the applicant ’ s description of the prison and added that bunk beds in the cells were crudely made of sharp metal rods and injured the prisoners. Mr Yevgeniy Vlasov stayed in the prison from August 1999 to May 2000 and confirmed the applicant ’ s description of the prison.

2. The Government ’ s account

During his stay in the prison the applicant, as a former policeman, was detained in two cells for former policemen. These cells measured 13.6 and 7.8 square metres. The prison administration provided the applicant with a bunk bed, bedding, and dishes. The cells were in a satisfactory sanitary condition, no prisoners had lice, tuberculosis, or other infectious diseases. The cells had central heating, running water, sewage, natural and artificial light, natural ventilation, two-storey beds, toilets, and sinks. The average temperature in winter was 18 o C , the average luminosity was 75–100 lux . The prison administration systematically disinfected the cells. Food met statutory requirements.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that the conditions of his detention had been inhuman.

2. The applicant complained under Article 3 of the Convention that during his arrest the police had handcuffed him too tight and subjected him to threats in order to extort confession. He also complained that he had been placed in the cell with hard-core criminals.

3. The applicant complained under Article 5 § 1 (c) of the Convention that his arrest and detention had been unfounded.

4. The applicant complained under Article 5 §§ 3 and 4 of the Convention that it took the district court too long to examine his complaint against the extension of the detention, and that his pre-trial detention had lasted too long.

5. The applicant complained under Articles 6 and 13 of the Convention about unfairness of the trial. Thus, in his words he was entitled to be tried by a jury or, alternatively, by three professional judges. Further, he alleged that the presiding judge was partial; that he had been too exhausted by the cell conditions to stand the trial; that he had been unable to choose a defence lawyer at will; that he had had no access to records of certain investigative actions and received a copy of the trial record with a three-months delay; that the judgment had been pronounced in a closed hearing; that he had not enough time to prepare for the hearings, that the prison administration had banned law books. He also complained about various breaches of the Russian procedural law.

6. The applicant complained under Article 1 of Protocol No. 1 that when searching his home the police had stolen his property.

THE LAW

1. The applicant complained under Article 3 of the Convention about the conditions of his detention from 20 October 1999 to 20 September 2000 in the remand prison IZ 39/1. Article 3 of the Convention reads:

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

The Government argued that this complaint was manifestly ill-founded. They referred to their description of the prison, and added that the applicant had not complained about the conditions of his detention to any domestic authority.

The applicant argued that his complaint was well-founded. He referred to his and his fellow prisoners ’ description of the prison and added that he did complain about the conditions of his detention to the courts.

As far as the Government argue that the applicant has failed to complain to a domestic authority, the Court reiterates that Article 35 § 1 of the Convention indeed requires to exhaust all available domestic remedies before applying to the Court. Nevertheless, the Court also reiterates that in 1999–2000 conditions in Russian remand prisons were unsatisfactory, and that there was no effective remedy against this general problem (see Kalashnikov v. Russia ( dec .), no. 47095/99, ECHR 2001 ‑ XI (extracts)). Hence, the Court dismisses the Government ’ s argument.

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

2. The applicant complained under Article 3 that during his arrest the police handcuffed him too tight. He also complained that the police officer threatened him in order to obtain confession statements and put him in the cell with hard-core criminals.

The Court recalls in this respect that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 . The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). The Court recalls that at the moment of his arrest the applicant was a 37 years ’ old healthy male. Although the facts complained of by the applicant could have caused him certain discomfort and stress, there is no evidence that the handcuffing caused the applicant any serious physical pain or that the applicant was somehow ill-treated by his cell-mates. Therefore, in the opinion of the Court, that treatment did not attain the minimum required to fall within the ambit of Article 3. As to the alleged threats, the Court notes that there is nothing in the case-file to support the applicant ’ s allegations that he had been subjected to any pressure going beyond the normal interrogation techniques that are strictly necessary in the context of any investigation.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. T he applicant presented a number of complaints about his arrest and subsequent detention pending investigation and trial. Article 5 of the Convention, referred to by the applicant, insofar 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.

...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court recalls that the applicant was convicted by the first instance court on 20 April 2000. Thereafter for the purposes of the Convention he was a person convicted by a competent court, pursuant to Article 5 § 1 (a) of the Convention and, consequently, ceased to have been detained pending investigation and trial under Article 5 § 1 (c) (see, mutatis mutandis , Daktaras v. Lithuania , no. 42095/98, 11 January 2000, ECHR 2000-X; see also, as a classic authority, the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, pp. 23, § 9). The case- file contains no documents concerning the extension of the applicant ’ s detention under Article 5 § 1 (c) posterior to the date of the first instance court judgment. The application was lodged with the European Court on 19 February 2001 that was more than six months after the applicant ’ s detention pending trial had ended.

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

3. The applicant presented several complaints under Articles 6 and 13 of the Convention and Article 1 of Protocol no. 1 thereto. Thus, the applicant was tried by a court comprised of a professional judge and two lay judges, whereas, in his words, he had the right to be tried by a jury or a by a court comprised of three professional judges. He further complained that he had been too exhausted by the cell conditions to stand the trial; that the judgment had been pronounced in a closed hearing; that he had been unable to choose a defence lawyer at will; that he had had no access to the records of the proceedings and that the prison administration had banned law books. He also complained about various breaches of the Russian procedural law.

Article 6 of the Convention, insofar as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal established by law. Judgment shall be pronounced publicly ...

...

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

...

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

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

At the outset the Court notes that apart from his own allegations the applicant produced almost no documents or other evidence in support of his complaints, although on two occasions the Registry of the Court invited him to do so. The applicant failed to explain why he or his lawyer had not kept the copies of procedural documents that could have been necessary for bringing the case to the European Court . As to the materials in the Court ’ s possession, they do not disclose any appearance of a violation of the applicant ’ s rights under Article 6 of the Convention for the reasons set out below.

First, nothing indicates that the applicant was not convicted by a “tribunal established by law”. Neither the Convention nor the national legislation provided at the material time for a right to a jury trial (see Moiseyev v. Russia ( dec .) , no. 62936/00, 9 December 2004). As follows from the decision of the court of appeal, the applicant was convicted by a competent court, and the Court sees no reason to disagree with that finding. Therefore, this part of the complaint is manifestly ill-founded.

Secondly, insofar as the applicant complained that the court pronounced the judgment behind closed doors, the Court notes that the text of the judgment proves the contrary (see the “Facts” part above). Furthermore, there is no evidence that the applicant had ever raised that issue before the court of appeal. Therefore, this part of the complaint is in any case inadmissible for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

Thirdly, although the applicant ’ s complaint about the conditions of his detention is not manifestly ill-founded (see above), nothing suggests that those conditions prevented him from exercising his procedural rights at the trial, especially given that he was represented by a lawyer. The Court concludes that this complaint is manifestly ill-founded.

Fourthly, as to the alleged partiality of the trial court, there is no evidence that the applicant raised this complain t before the court of appeal. Therefore, this part of the complaint is inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Fifthly, as regards the applicant ’ s contention that he was not represented by the lawyer of his choice, the Court recalls that in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the proceedings (see, among many other authorities, Dikme v. Turkey , no. 20869/92, § 109, ECHR 2000-VIII). It is true that the applicant did not have the lawyer during the first three days of the investigation. However, after his arrest he signed a statement waiving his right to a lawyer. Nothing suggests that he had done so under undue pressure. Further, as to the applicant ’ s allegation that the investigator refused to admit Ms D. to the proceedings, it is not supported by any evidence and was rejected by the court of appeal as unsubstantiated. Even assuming that the applicant did in fact submit such a request and it was rejected, the Court recalls that the right of an accused to have legal assistance is not absolute. In the Court ’ s view, the reason forwarded by the authorities for not allowing Ms D. to participate in the proceedings in the capacity of the applicant ’ s representative is quite convincing. Ms D. had been questioned as a witness and could have been questioned in future by the trial court. That clearly precluded her from exercising the duties of a representative in a proper way. The Court further notes that from 20 October 1999 onwards the applicant had a lawyer, who represented him during the investigation and before the courts at two instances. The Court concludes that, regard being had to the proceedings as a whole, the applicant ’ s rights under Article 6 § 3 (c) were not breached.

The applicant ’ s allegation that he had no access to the records of the investigative actions and the official record of the trial were examined by the court of appeal and rejected as unsubstantiated. The Court sees no reason to disagree with that finding of the domestic court. In any event, the applicant did not claim that his lawyer had been unable to read those materials. Therefore, the rights of the defence under Article 6 § 3 (b) were not breached.

The Court observes that in reaching its conclusions the District Court relied on a great variety of evidence. Even if there were certain irregularities in the domestic proceedings and discrepancies in the testimonies, the District Court ’ s findings do not appear arbitrary or unreasonable. Throughout the proceedings the applicant was afforded ample opportunities, personally and through his defence counsel, to present his case and contest the evidence against him before the courts at two levels of jurisdiction (see Jakumas v. Lithuania , no. 6924/02, §§ 54-55, 18 July 2006). It follows that the proceedings in his case, taken as a whole, were fair.

As regards the applicant ’ s reference to Article 13 of the Convention, from the applicant ’ s submissions it is unclear in what respect he did not have an effective remedy. Throughout the proceedings the applicant could defend himself by lodging relevant motions with the prosecution, the District Court, or, following the trial, by appealing to the Regional Court . There is no evidence that the applicant was de facto precluded from exercising his rights guaranteed by the Russian law on criminal procedure or that those rights were in principle insufficient to secure his effective defence. The Court concludes that this complaint is manifestly ill-founded.

In sum, it follows that the applicant ’ s complaint under Articles 6 and 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant complained under Article 1 of Protocol No. 1 that when searching his home the police had stolen his property. However, the domestic courts established that no private belongings of the applicant had been seized during the search. There is nothing in the case-file that would make the Court to disagree with the finding of the domestic instances in that respect.

It follows that the a pplicant ’ s complaint under Article 1 of Protocol no. 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint concerning the conditions of his detention on remand from 20 October 1999 to 20 September 2000 in the remand prison;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President