FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68493/01 by Igor Vadimovich PATRIKEYEV against Russia

The European Court of Human Rights (Fourth Section), sitting on 21 September 2004 as a Chamber composed of:

Mr M. Pellonpää , President , Mr J. Casadevall , Mr R. Maruste , Mr A. Kovler , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , an d Mrs F . E lens -P assos , Deputy Section Registrar ,

Having regard to the above application lodged on 13 July 2000 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Igor Vadimovich Patrikeyev, is a Russian national , who was born in 1967 and lives in town Uzlovaya, the Tula Region . He is currently in prison AB 261/4 in the village Uptar, the Magadan region.

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

1. The first set of criminal proceedings against the applicant.

On 21 April 1998 the applicant was arrested on suspicion of robbery. He submits that in the police station he was beaten and tortured by police officers and contracted scabies.

Between 24 April 1998 and 6 June 2001 the applicant was detained in the remand prison IZ 47/1 of Magadan . The applicant submits that in the cell of 15 square meters there were usually 15-21 inmates. There were eight beds in the cell and the inmates had to take two or three turns in sharing the bed . As he had to spend most of the time in the cell standing , his illness – varicose veins – worsened significantly . Because the lights were always on in the cell his sight deteriorated from - 1 to - 8. While in detention he lost 12 kilos because of malnutrition. Due to lack of vitamins his gums became swollen. During winters the outside temperature reached - 50 º Celsius , and in the absence of adequate heating inside he, as well as other inmates, always had a cold. There was no ventilation in the cell, and sometimes it was shared with inmates who suffered from tuberculosis, which caused outbreaks of this disease.

On 21 May 1998 the bill of indictment was drawn.

The court hearing was fixed for 27 March 2001 , however, it did not take place.

2. The second set of criminal proceedings against the applicant.

On 27 July 1998 the applicant was charged with rape. On an unspecified date the applicant and the co-accused were confronted with the victim.

On 16 February 200 0 the Magadan Town Court convicted the applicant of rape and sentenced him to 7 years 6 months ' imprisonment . The victim was examined in the hearing.

On 29 May 2000 the Magadan Regional Court quashed the judgment o n procedural grounds and remitted the case for a fresh examination.

On 29 September 2000 the Magadan Town Court convicted the applicant of rape and sentenced him to 7 years 3 months ' imprisonment.

On 6 December 2000 the Magadan Regional Court upheld the judgment.

On 20 December 2001 the Presidium of the Magadan Regional Court partially reversed the judgment. It appears that the Presidium amended the reasoning of the judgment but upheld the sentence.

Since 6 June 2001 the applicant is held in prison AB 261/4 in the village Uptar, the Magadan region. The applicant submits that he is a Christian and while in prison he conducted correspondence with other Christians living in the United States . On 23 January 2002 the administration of the prison prohibited him to further conduct the correspondence referring to a certain decree No. 215. The applicant ' s request to see the decree was refused on the grounds that it was an internal document.

The applicant further submits that on an unspecified date in 2002 the administration of the prison informed him that all his correspondence with the Court would be first processed by the Department of Execution of Punishment of the Ministry of Justice and then forwarded to the Court.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that the conditions of detention in the remand prison IZ 47/1 of Magadan were appalling.

2. Again invoking Article 3 of the Convention , t he applicant complaints about the alleged mistreatment by the police officers .

3. The applicant complains under Article 5 of the Convention that his pre-trial detention was unlawful ; that the reasons of his arrest explained to him were not sufficiently precise ; that his arrest was authorised by the Prosecutor only on the third day of his detention and that the Prosecutor did not suggest to apply to the applicant other measures of restraint.

4 . The applicant complains under Article 6 of the Convention about the alleged unfairness of the second set of criminal proceedings. He also complains about the length and the outcome of the proceedings. He alleges that he was charged with offences he had not committed; that he was forced to defend himself in the hearing as the appointed counsels were not familiar with his case and he could not afford to choose a counsel; that the victim, who was the main witness for the prosecution, w as not examined in the hearing.

5. The applicant complains under Article 6 § 1 of the Convention about the length of the first set of criminal proceedings against him.

6. Invoking Article 6 § 3 (a) of the Convention , the applicant complains that in the first set of criminal proceedings he was not charged until the third day after his arrest.

7 . Invoking Articles 8, 9 and 14 of the Convention , the applicant complains about the alleged prohibition to conduct correspondence with Christians in the United States .

8 . The applicant complains under Article 34 of the Convention that his correspondence with the Court since 2002 wa s censored.

THE LAW

1. The applicant complains under Article 3 of the Convention about the conditions of detention in the remand prison IZ 47/1 of Magadan .

Article 3 provides as follows:

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

2. Again invoking Article 3 of the Convention , t he applicant complains about having been ill- treated by the police officers .

The Court must first examine whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention.

The applicant has not provided the Court with any documents to show that he invoked the complaint concerning the alleged mistreatment before domestic authorities.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

3. Under Article 5 of the Convention the applicant alleges that his pre-trial detention was unlawful; that the reasons of his arrest explained to him were too vague; that his arrest was authorised by the Prosecutor only three days later and the application of other measures of restraint was not suggested to him.

The Court must first examine whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention.

However, also in this respect the applicant has not provided the Court with any documents to show that he invoked any of the aspects complained of before domestic authorities.

It follows that also this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

4 . The applicant complains under Article 6 of the Convention about the second set of criminal proceedings. He complains that the length of the proceedings was in breach of the “reasonable time” requirement, and that the courts ' findings of fact were wrong. He further alleges that he was charged with offences that he had not committed; that he was forced to defend himself in the hearing as the appointed counsels were incompetent and he could not afford other counsel; that the main witness for the prosecution was not examined in the hearing.

Article 6 provides, insofar as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time [ ... ].

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

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

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him [ ... ].”

The Court notes that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court ' s task is to ascertain whether the proceedings as a whole were fair (see, inter alia, Bernard v. France , judgment of 23 April 1998 , no. 22885/93, § 37, ECHR 1998-II). T he Court finds that in the present case the domestic courts at two levels of jurisdiction carefully examined the materials in their possession and reached reasoned conclusions as to the merits of the case . The applicants had ample opportunities to state his case and contest the evidence he considered false. The witness in question was examined in the hearing of 16 Fe bruary 2000 . As regards the competence of the appointed counsels, the responsibility of the State is engaged only “if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way” (see Kamasinski v. Austria , judgment of 19 December 1989, Series A no. 168, p. 33, § 65). Neither of these conditions is met in the present case. There is no evidence of any unfairness within the meaning of Article 6.

As regards the length of the proceedings, t he Court notes that the y lasted  2 years, 4 months and 10 days, including two cycles of first instance and appeal examinations. The Court does not find this length “unreasonable” within the meaning of Article 6 § 1.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

5. Under Article 6 of the Convention , the applicant complains that the first set of criminal proceedings against him lasted unreasonably long.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

6. The applicant complains under Article 6 § 3 (a) of the Convention that in the first set of criminal proceedings he was charged only on the third day after his arrest.

The Court must first examine whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention.

The applicant has not provided the Court with any documents to show that he invoked the complaint before domestic authorities.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

7. The applicant complains under Articles 8, 9 and 14 of the Convention that the prison administration allegedly prohibited him to correspond with Christians in the United States .

The Court must first examine whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention.

However, also in this respect the applicant has not provided the Court with any documents to show that he invoked this complaint before domestic authorities.

It follows that also this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

8. Under Article 34 of the Convention the applicant alleges that his correspondence with the Court wa s censored since 2002 .

Article 34 provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

In this respect the applicant allege s that in 2002 the administration of the prison informed him that all his correspondence with the Court would be first processed by the Department of Execution of Punishment of the Ministry of Justice.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaint s concerning the length of the first set of criminal proceedings, conditions of detention and alleged censorship of the correspondence with the Court;

Declares the remainder of the application inadmissible.

F rançois e E lens -P assos Matti Pellonpää         Deputy Registrar President