FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66460/01 by Andrey NOVOSELOV against Russia

The European Court of Human Rights (First Section), sitting on 8 July 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. H ajiyev , judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application lodged on 27 November 2000,

Having regard to the partial decision of 16 October 2003,

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 Andrey Ivanovich Novoselov, is a Russian national, who was born in 1961 and lives in Krasnodar. He is represented before the Court by Ms D. Vedernikova, a lawyer with the European Human Rights Advocacy Centre (EHRAC) in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

(a) The applicant’s conviction for disorderly behaviour

On 26 June 1998 the applicant had a loud quarrel with his neighbour and assaulted him, both verbally and physically. Further to a complaint lodged by the neighbour, the police opened criminal proceedings against the applicant.

On 27 October 1998 the applicant was taken into custody and placed in detention facility no. IZ-18/3 of Novorossiysk ( ИЗ 18/3 г. Новороссийска , “facility no. 18/3”).

On 5 November 1998 the Oktyabrskiy District Court of Novorossiysk  found the applicant guilty of disorderly behaviour (Article 213 § 1 of the Criminal Code) and sentenced him to six months’ imprisonment.

(b) First examination of the appeal against conviction

On 10 November 1998 the applicant sent his hand-written grounds of appeal against the judgment of 5 November via the detention facility administration.

On 12 November 1998 Mr Lipatov, a lawyer retained by the applicant’s mother, submitted grounds of appeal on behalf of the applicant. The applicant was not aware of this and was not given an opportunity to review the grounds of appeal.

On 23 December 1998 the Criminal Chamber of the Krasnodar Regional Court considered the grounds of appeal submitted by Mr Lipatov and upheld the judgment of 5 November. It appears that the applicant’s appeal was not received and examined.

On 28 April 1999 the applicant was released from the detention facility, having served his sentence.

(c) Second examination of the appeal against conviction

On 27 November 2000 the applicant submitted additional grounds of appeal and on 23 December 2000 he applied for an extension of the time-limit.

On 19 February 2001 the Oktyabrskiy District Court of Novorossiysk refused to extend the time-limit because the applicant had failed to show valid reasons to justify the extension.

On 16 May 2001 the Criminal Chamber of the Krasnodar Regional Court upheld, on the applicant’s appeal, the decision of 19 February.

At the applicant’s request, on 14 November 2001 the president of the Krasnodar Regional Court brought an application for supervisory review of the judgment of 23 December 1998. On 22 November 2001 the Presidium of the Regional Court granted the application and quashed the judgment of 23 December 1998 on the ground that the appeal court had failed to consider the grounds of appeal submitted by the applicant.

On 5 December 2001 the Criminal Chamber of the Krasnodar Regional Court held a new appeal hearing. It appears that the summons was sent to the detention facility where the applicant had served his sentence in 1998-1999 and the applicant was not present at the hearing. The Regional Court upheld the conviction of 5 November 1998.

(d) Third examination of the appeal against conviction

On 31 May 2002 the applicant lodged a new application for supervisory review.

On an unspecified date the acting president of the Krasnodar Regional Court lodged an application for supervisory review of the appeal judgment of 5 December 2001 on the ground that the applicant had not been duly notified of the hearing and, as a consequence, had not attended it. On 29 August 2002 the Presidium of the Regional Court granted the application and quashed the judgment of 5 December 2001.

On 18 September 2002 the Criminal Chamber of the Krasnodar Regional Court delivered the final appeal judgment whereby it confirmed the applicant’s conviction of 5 November 1998. The Regional Court also ordered that the applicant be relieved from punishment because of the Amnesty Act of 26 May 2000.

On 1 November 2002 the applicant filed a new application for supervisory review with the Supreme Court of the Russian Federation. The applicant complained, in particular, that he had not been duly summoned to the hearing on 18 September 2002 and, therefore, he could not attend and plead his case. It appears that his application was refused on an unspecified date.

2. The applicant’s detention and proceedings for compensation

Between 27 October 1998 and 28 April 1999 the applicant was kept in facility no. 18/3, initially during his detention on remand and later while he served the sentence under the judgment of 5 November 1998. During that period the applicant was kept in cells nos. 11 and 3.

(a) Conditions of the applicant’s detention in facility no. 18/3

The parties present the following descriptions of the detention conditions in the facility.

The Government’s account

Each cell of unspecified surface had 30 sleeping places. Bedding was distributed to each inmate “in full” and sleeping berths were made of metal plates and covered with wadded mattresses.

Cells were equipped with ventilation. It was switched on and off “in accordance with the schedule approved by the facility director” (order no. 41 of 26 May 1998). On “especially hot” days the cells doors were open to ensure a better circulation of air.

Toilets were located at the entrance and separated from the living parts by a brick partition measuring 1.3 m in height and width.

Each inmate received 200 g of washing soap and 70 g of laundry detergent each month. Bathing was possible “regularly”.

The sanitary and hygienic conditions of the cells were up to the applicable standards and insecticide was distributed every month.

Complaints and requests were taken from inmates during the morning inspection of cells starting at 8 a.m.

The applicant’s account

Each cell measured approximately 42 square metres and accommodated 42 to 51 inmates. Inmates took turns to sleep. Thirty sleeping places were available, of which two were occupied with water receptacles for washing and flushing the toilet. The water containers were needed as running water was only available for one hour three times a day.

No bedding was provided to inmates, save for tattered cotton mattresses. Between 5 November and 28 December 1998 in cell no. 11 the applicant had to sleep without a mattress on metal plates, covering himself with an old, dirty and worn cotton rag.

The ventilation was only switched on for a few minutes when “controllers” visited the facility. Windows were covered with steel plates leaving an open slot of about 10 cm. There was no fresh air in the cells.

The toilet sat on an elevation of 0.5 m above the floor. A partition of 1.1 m in height separated it from the rest of the cell. Occasionally an inmate hung a sheet to get some privacy.

Inmates were given one piece of soap per week for the entire cell population. No laundry detergent was available.

A thick, black and footworn layer of dirt covered the floor. Inmates’ clothing swarmed with lice, spiders and other insects. Between 5 November 1998 and 15 January 1999 cell no. 11 was not once sanitised. Between 15 January and 28 April 1999 cell no. 3 was sanitised on one occasion.

The administration took complaints, requests and letters from inmates once a day, between 4.30 and 5 a.m.

The food ration consisted of bread, millet porridge, boiled pearl barley and no-meat soup. For a period of six months inmates were fed on five occasions with pea soup, soup with pasta and boiled rice.

(b) The applicant’s state of health during the detention and shortly thereafter

In April 1999 the applicant contracted scabies and he received sulphuric and benzyl ointments to treat himself. He was not isolated from other inmates. The applicant’s cellmates who contracted scabies and other skin diseases were not taken out of the cell either. The applicant submits that tuberculosis-infected inmates spent, on several occasions, a few days in his cell. According to the Government, infected inmates were isolated in a special wing. The applicant twice fell ill with a high temperature and he was treated with sulphadimisin and aspirin.

By the time of his release, the applicant had lost 15 kilograms in weight, he felt short of breath while walking, tired easily, could not run, and suffered from pustules and itching all over his body.

On 5 May 1999 the applicant was examined in clinic no. 1 of Novorossiysk and issued with a certificate confirming that he suffered from emaciation.

(c) Civil proceedings for compensation

On 30 July 2002 the applicant filed a civil action for damages against the Treasury of the Russian Federation. He claimed compensation for non-pecuniary damage caused by “inhuman and degrading” conditions of detention in facility no. 18/3. He described the conditions of his detention in minute detail and relied, in particular, on Article 3 of the Convention.

On 1 October 2002 the Pervomayskiy District Court of the Krasnodar Region dismissed the applicant’s action. The District Court held that the applicant had failed to prove that the officials of facility no. 18/3 had been liable for pecuniary or non-pecuniary damage allegedly caused to him. The court also pointed out that the applicant had served his sentence upon lawful conviction by a competent court and, therefore, the responsibility of the treasury was not engaged.

On 14 November 2002 the Krasnodar Regional Court upheld, on the applicant’s appeal, the judgment of the District Court.

The subsequent applications for supervisory review lodged by the applicant with the Krasnodar Regional Court and the Supreme Court of the Russian Federation were dismissed on 13 January and 17 March 2003, respectively.

B. Relevant domestic law

Procedure for the hearing on appeal

Article 336 of the RSFSR Criminal Procedure Code of 27 October 1960 (in force at the material time) provided that persons who had submitted their points of appeal were to be notified of the date of the appeal hearing. If a person was notified, but failed to appear, the appeal court could proceed with the hearing. Article 338 further required that at the beginning of a hearing the presiding judge verify attendance. The court then decided whether to proceed with the hearing.

On 10 December 1998 the Constitutional Court of the Russian Federation declared unconstitutional Article 335 § 2 of the Criminal Procedural Code which allowed appeal courts to reach a final decision on a convicted person’s appeal if the convicted person was absent from the hearing and he or she had not been provided with an opportunity to study the materials of the hearing and communicate his or her opinion on the issues raised by the appeal court.

Tort liability of State agencies

Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor.

Under Article 1069 of the Civil Code a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that he had not been given an opportunity to attend the appeal hearing at which the criminal charge against him had been determined.

2. The applicant complained under Article 3 of the Convention about the conditions of his detention in facility no. 18/3 of Novorossiysk and his inability to obtain compensation for the damage to his health sustained during the detention.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention that he had not been properly summoned to the appeal hearings in the criminal proceedings against him and he had been unable to plead his defence. The relevant parts of Article 6 read as follows:

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

The Government confirm that the appeal hearing in the Krasnodar Regional Court of 5 December 2001 was held in the applicant’s absence. However, on 29 August 2002 the Presidium of the Krasnodar Regional Court quashed that judgment precisely because the applicant’s right to be present had not been respected. In so far as the hearing of 5 December 2001 is concerned, the Government consider that the applicant is no longer a victim of the alleged violation. As regards the hearing of 18 September 2002, the Government indicate that on 11 September 2002 the Regional Court registry despatched summonses to all parties, including the applicant and his lawyer. The registry used the applicant’s address in Novorossiysk (39 Smolenskaya street), basing itself on the materials in the case-file. It was not until 11 October 2002 that the court learnt of the applicant’s new address in Krasnodar which was indicated on his request for a copy of the judgment. The Government conclude that the applicant failed to inform the court of his new contact details and, having regard to the fact that his lawyer was also notified of the hearing, invite the Court to declare the complaint manifestly ill-founded.

The applicant submits that since April 2000 he has been living in Krasnodar and using a poste restante address at the nearest post office for his communications. He indicates that in late 2001 and early 2002 he sent several complaints to the Supreme Court of the Russian Federation and received replies at his address in Krasnodar. Also, on 29 April 2002 the Oktyabrskiy District Court of Novorossiysk sent him a copy of the decision to Krasnodar in reply to his request therefor. Finally, his supervisory-review application of 31 May 2002 on which his address in Krasnodar was clearly noted was forwarded by the Supreme Court to the Krasnodar Regional Court. The applicant considers, therefore, that the Regional Court failed to notify him property of the date of the appeal hearing.

The Court reiterates that the right of an accused to participate in person in the trial is a fundamental element of a fair trial (see T. v. Italy , judgment of 12 October 1992, Series A no. 245-C, p. 41, § 26; Colozza v. Italy , judgment of 12 February 1985, Series A no. 89, p. 14, § 27). An accused may waive the exercise of this right, but to do so his decision not to appear or not to defend himself must be established in an unequivocal manner (see Colozza v. Italy , cited above, § 28). The Court further recalls that the manner of application of Article 6 § 1 to proceedings before courts of appeal depends on the special features of the proceedings involved. Where a public hearing has been held at first instance, the absence of such a hearing may be justified at the appeal stage by the special features of the proceedings at issue. Even if the court of appeal has full jurisdiction to examine both points of law and of fact, Article 6 § 1 does not always require a right to a public hearing or, if a hearing takes place, a right to be present in person ( Sigurþór Arnarsson v. Iceland , no. 44671/98, § 30, 15 July 2003).

The Court observes, firstly, that the Oktyabrskiy District Court proceedings comprised a full hearing (on 5 November 1998) during which counsel for the defence, the applicant in person and several witnesses were heard. The issue to be determined is whether the applicant’s absence from the appeal hearings before the Krasnodar Regional Court involved a breach of his rights under Article 6 § 1. The Court sees no reason to decide this question in respect of the hearing of 5 December 2001 because, as the Government rightly point out, the judgment of that date was later quashed on account of a serious procedural violation. The case was remitted for a new examination on appeal and any adverse impact on the applicant’s rights that might have been occasioned by alleged procedural defects of that hearing were thereby eliminated.

As regards the hearing of 18 September 2002, the Court observes that summonses were sent to the last known address of the applicant available to the court registry, as well as to his counsel who had taken part in the original proceedings. The applicant contends that he did not receive either of them because he no longer lived at that address and did not maintain contact with the counsel who had been originally retained by his mother, much to the applicant’s dissatisfaction.

The Court recalls in this context that it is incumbent on the interested party to display special diligence in the defence of his interests (see Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001). It considers, in particular, that the applicant could reasonably have been expected to indicate his wish to receive a summons at his new address in Krasnodar, particularly since he was a seasoned litigant and he must have foreseen that the criminal proceedings could be re-opened following his requests to that effect which he had filed with various courts. The authorities cannot be held responsible for the failure to serve a summons on him because he did not take the necessary steps to ensure receipt of his mail at his new place of residence and was thereby unable to apprise himself of the appeal hearing date. The Court is not persuaded by the applicant’s reference to his correspondence with the Supreme Court conducted through his new address because the responsibility for serving the court summons and decisions lies with the registry of the court where the case-file is stored – the Oktyabrskiy District Court of Novorossiysk in the instant case – and the applicant should have been aware of that from his extensive litigation experience over many years. Furthermore, the Court does not consider that the applicant’s request for a copy of the judgment of April 2002 addressed to the Oktyabrskiy District Court could be interpreted as a notice of his new contact details. Finally, it notes that no letter showing the applicant’s intention to inform the registry of his address in Krasnodar has been produced.

Having regard to the foregoing, the Court finds that, in the circumstances of the present case, the authorities’ presumption that the applicant had waived his right to be present at the appeal hearing had a sufficient basis. In any event, the Court cannot overlook the fact that the applicant was ultimately granted an amnesty in the proceedings in question and, although he cannot be said to have lost his victim status because he had already served the sentence by that time, the application of the amnesty act mitigated any adverse impact that his absence from the appeal hearing might have had on his rights.

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

2. The applicant complained under Article 3 of the Convention that the appalling conditions of his detention in facility no. 18/3 of Novorossiysk had amounted to inhuman and degrading treatment. Article 3 provides as follows:

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

The Government, relying on ten undated certificates signed by Mr S. Shramko, director of facility no. 23/3 in the Krasnodar Region, [*] claim that the conditions of the applicant’s detention were in conformity with applicable laws and regulations and that they were not inhuman and degrading. One of these certificates indicates that “no information confirming the applicant’s emaciation could be established”. The Government further rely on a similar certificate, signed by the head physician and a department head of clinic no. 1, to show that the applicant was not registered for regular medical check-ups or out-patient treatment at the clinic. Finally, they submit that the domestic courts correctly refused to award compensation to the applicant as no fault on the part of the facility personnel could be established.

The applicant disagrees. He maintains his account of the detention conditions and refers to medical certificates of April and May 1999 showing that he had contracted scabies and suffered from emaciation. The out-patient treatment was not indicated as he had not asked for it and no record of his check-ups is available because he had taken his medical record with him to Krasnodar in 2000.

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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 3 of the Convention about allegedly inadequate conditions of detention in facility no. 18/3 of Novorossiysk;

Declares inadmissible the remainder of the application.

Santiago Quesada Christos Rozakis              Deputy Registrar President

[*] On 13 June 2001 facility no. 18/3 was assigned a new number, 23/3.