FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63378/00 by Yuriy Yevgenyevich MAYZIT against Russia

The European Court of Human Rights (First Section), sitting on 29 April 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens, Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky, judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced on 10 July 2000 ,

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, Yuriy Yevgenyevich Mayzit, is a Russian national, who was born in 1953 and lives in Kaliningrad. He is represented before the Court by Ms Olga Tretyakova, a news-stand vendor from Kaliningrad. The respondent Government are represented by Mr Pavel Laptev, the Representative of the Russian Federation in 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. His initial arrest

On 21 July 1998 criminal proceedings were instituted against the applicant on charges of misuse of firearms. It was alleged by the investigating authorities that the applicant had on several occasions shot at another person’s windows with a hunting rifle in revenge for an unpaid debt.

On 21 September 1998 (22 September, according to the Government) the applicant was arrested. After several interrogations, on 22 September 1998 , the applicant was formally charged. The next day, the applicant was released from custody under a written undertaking not to leave the town.

On 20 November 1998 , the investigation was finished, and the applicant, together with his lawyer, began the examination of the case-file.

In the course of the investigation and after it had finished, the applicant made numerous complaints with public prosecutors and other law-enforcement authorities. He claimed that the case against him had been fabricated, that the investigation did not comply with relevant procedural requirements and that his defence lawyer was inefficient. The applicant also sought that those responsible for the breaches be subjected to disciplinary action and criminal prosecution, and that the case against him be dropped.

On 1 December 1998 the case and indictment prepared by the prosecution were submitted to the Moskovskiy District Court of Kaliningrad for trial. After numerous adjournments, on 24 March 1999 , the case was remitted for further investigation.

2 . The applicant’s second arrest

On 7 July 1999 the investigating authorities issued an arrest warrant to detain the applicant because he had on numerous occasions failed to turn up for interrogation. The applicant was arrested on 27 July 1999 , and on 28 July 1999 imprisoned in Remand Centre IZ-35/1 (currently named IZ-39/1).

The new investigation ended on 2 August 1999 .

In the period between July and September 1999 the applicant made a number of applications for release to the Baltiyskiy and Moskovskiy District Courts of Kaliningrad. On 6 September 1999 the Moskovskiy District Court informed the applicant that his application would be examined on 20 September 1999 . On that day the applicant was escorted to the court but no hearing took place and the applicant was returned to the prison.

On 30 September 1999 the Moskovskiy District Court considered that the case was not ready for trial and ordered a re-investigation. The court also ordered the applicant’s release on the ground that the investigation had not presented valid evidence that the applicant had been absconding. On 1 October 1999 the applicant was released.

Following his release, the applicant made a number of complaints and petitions about the malpractice of the prosecutors, investigators and judges involved in his case. The applicant was not satisfied with the follow-up received on most of his applications. Many refusals were based on the applicant’s failure to comply with statutory requirements for making complaints.

3 . The applicant’s third arrest and conviction

On 26 July 2000 the applicant was arrested again on the basis of an arrest warrant issued by the investigation on 4 April 2000 . It was claimed by the investigator that the applicant had changed his residence without notifying the prosecution and persistently did not appear for procedural formalities, thus hampering the proceedings.

On 30 July 2000 the applicant lodged an application for release with the Moskovskiy District Court. The application was forwarded to the court having jurisdiction to review the application – the Central District Court of Kaliningrad. On 2 August 2000 the applicant made a similar request to the Public Prosecutor of the Kaliningrad Region. Suspecting that these complaints had not been properly forwarded to the recipients, on 6 August 2000 the applicant made a complaint about the government of the Remand Centre IZ-35/1 to the Public Prosecutor of the Kaliningrad Region.

In the applicant’s submission, the conditions in the prison cells where he was held, namely cells nos. 67 and 97, were far from satisfactory. The cells were dirty and infested with cockroaches, bed-bugs and lice. As no bedding was provided, inmates had to sleep on protruding bed springs. The only crockery made available to the applicant was an aluminium bowl. The cells were insufficiently lit as the windows were covered with steel shutters. The cells were overcrowded (leaving about one square metre of surface per person), the number of detainees exceeded the number of available sleeping places and the conditions were generally unhygienic. It had not been open to the applicant to wash more than once in ten days. Upon leaving the Remand Centre IZ-35/1 the applicant was diagnosed with tuberculosis. He claims that he also suffered a deterioration in his eyesight.

On 21 August 2000 the prosecutor of the Moskovskiy District prepared the indictment and submitted it to the Moskovskiy District Court.

On 25 August 2000 the Central District Court decided not to look into the substance of the applicant’s application for release lodged on 30 July 2000 and passed it to the Moskovskiy District Court.

On 4 September 2000 the applicant was taken to the Moskovskiy District Court where, as the applicant presumed, his application for release was to be heard. At the hearing the applicant also expressed the wish that his close relatives – the mother and sister – be allowed to represent him in the proceedings concerning the lawfulness of the arrest. The court did not permit such legal representation and held that it was not in any event in a position to decide on the applicant’s release since the criminal case against the applicant had been by that time submitted for trial and the examination of the lawfulness of the arrest should be carried out by the trial judge.

On the same day, the trial judge set the hearing for 9-13 October 2000 and held that the applicant should stay in custody in view of the gravity of the charge and the reasons given on 4 April 2000 by the investigator. It was also held that the applicant’s relatives could not participate in the hearing because a professional advocate, Mr Mukhin, had been appointed. During the trial, on 15 December 2000 , the Moskovskiy District Court once again confirmed that the applicant should be held in custody pending trial.

On 19 November 2000 the applicant once again demanded to be represented by his relatives. He claimed, in particular, that the assistance counsel Mukhin was imposed on him against his will.

On 15 December 2000 the Moskovskiy District Court refused to examine the applicant’s application for release on the ground that this matter had been resolved earlier.

On 25 December 2000 the Moskovskiy District Court of Kaliningrad found the applicant guilty of disorderly behaviour and arbitrariness and sentenced him to six years’ imprisonment. At the hearing the applicant was represented by Mr Mukhin.

On appeal, the conviction was upheld by the Kaliningrad Regional Court on 27 February 2001 . The appeal court did not deal with the applicant’s complaint about not being allowed to choose legal assistance.

4. Further developments

On 19 August 2002 , after the Court had communicated the application to the Government, a Deputy President of the Supreme Court made an application for supervisory review of the decisions of the Moskovskiy District Court of 4 September and 15 December 2000 . The Deputy President alleged that these decisions had been unlawful as far as they had effectively deprived the applicant of his right to obtain a judicial review of his detention – a citizen’s fundamental right.

On 16 September 2002 the Presidium of the Kaliningrad Regional Court granted the application. It set aside the decisions of the Moskovskiy District Court of 4 September and 15 December 2000 and ordered a fresh examination of the applicant’s application for release.

B. Relevant domestic law

Under Article 220 § 1 of the Code of Criminal Procedure of 1960, as in force at the relevant time, complaints about a decision to take the suspect into custody as a measure of restraint shall be lodged by the detainee or his representative to a court. The prison government shall communicate the complaint to a relevant court within twenty-four hours of its receipt. The investigative authorities shall forward to the court the material justifying the arrest within twenty-four hours of notification that a complaint has been lodged.

Under Article 220 § 2, judicial control of the lawfulness and validity of an arrest shall be conducted by a judge in camera at the place of detention within three days of receipt of the material justifying the arrest.

COMPLAINTS

1. Under Article 3 of the Convention the applicant complained about the conditions in the Remand Centre IZ-35/1.

2. He submitted also that the impossibility to concentrate in such conditions, taken together with the prohibition by the prison government on the use of legal books and on the copying of documents had prejudiced his right to adequate facilities for the preparation of his defence in violation of Article 6 § 3 (b).

3. Under Article 5 § 4 of the Convention the applicant complained about the failure of the domestic courts to review his applications for release made after his arrest on 26 July 2000 and about the obstacles that prevented communication of these applications to the courts.

4. Under Article 6 § 3 (c) the applicant complained that his relatives had not been permitted to represent him during the trial, and that he had been compelled instead to accept the assistance of an inefficient counsel.

5. Under various other provisions of the Convention and the Protocols thereto, the applicant challenged the merits of the charges, the reasonableness of his arrests, the bias of the State officials involved in his case and their failure to deal with his numerous complaints and petitions. The applicant specifically maintained that his prosecution, which he considered to be unfounded, had amounted to treatment incompatible with Article 3 of the Convention, regard being had to the distress caused to him.

THE LAW

1. The applicant alleged that the conditions in Remand Centre IZ-35/1 were incompatible with Article 3 of the Convention which reads as follows:

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

The Government claimed that the conditions in the prison could not be considered as amounting to “inhuman or degrading treatment”. During his stays in the prison the applicant had been placed in six cells of different capacity. The smallest cell, no. 97, had measured 7.8 m² and had been meant to accommodate six detainees. All the cells had been of a satisfactory sanitary state, and the prison government had checked their upkeep and maintenance every week. The Government stressed that in a recent judgment against Lithuania a cell offering 2.3 m² per person had been found compatible with Article 3 of the Convention (see Valašinas v. Lithuania , no. 44558/98, § 107, 27 July 2001). The applicant had been allowed outdoor activity at least one hour a day. On the applicant’s admission to the prison, his health had been checked by a general practitioner, dermatologist and psychiatrist who had found his condition satisfactory. An x-ray of the applicant’s chest made on 28 July 2000 had revealed tuberculosis after-effects. But since the applicant had been imprisoned only two days before, there had been no reason to believe that he had been infected with tuberculosis in the prison. Moreover, a doctor had concluded that the applicant had been healthy and had needed no treatment for tuberculosis. In conclusion, the Government maintained that the Russian authorities had not, in any event, had any intention to cause the applicant physical or mental suffering, or to humiliate or debase him during his detention.

The applicant contested the arguments put forward by the Government. He noted, first, that they had not mentioned his stay in Remand Centre IZ - 35/1 in July-October 1999 when he could have caught tuberculosis. The applicant had not been provided with an individual bed, and from two to three detainees had had to sleep taking turns. Weekly check-up of cells had not been able to make their sanitary condition more endurable. The prison staff had regularly mistreated the detainees.

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 further complained that the conditions of his detention made it impossible properly to prepare for his defence in court contrary to Article 6 § 3 (b) of the Convention which reads:

“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...”

The Government considered that this complaint was manifestly ill-founded. They claimed that the applicant had had an ample opportunity to study the material against him gathered by the investigative authorities. The final version of the indictment had been served on the applicant on 8 August 2000 , and a week later the investigative authorities had let him examine the case file. As the applicant had been convicted several months later, on 25 December 2000 , he had had sufficient time to prepare for his defence. Besides, during this time the applicant had written dozens of complaints to various authorities. The complaints had contained references to laws and that meant that the applicant had used law books. The applicant had received copies of both the judgment and the transcript of the hearing to be able to file an appeal. The Government enclosed a copy of an application of 15 March 2001 by which the applicant’s representative had asked the prison authorities to pass to the applicant legal codes.

The applicant claimed that the information submitted by the Government was false. He maintained that nothing proved that the application to pass the books had ever been granted and that, in any event, by 15 March 2001 he had already been serving his sentence. The great number of complaints written from prison only proved his firm will to stand for his rights despite the unbearable conditions of detention. The trial had lasted from 9 October to 25 December 2000, and during this period the applicant had spent, in total, twenty-two days in a tight cell measuring 0.8 by 1.5 metres ( «каменный стакан» ) where he had had to await being called to the judge. He had been handcuffed throughout the court hearings – even during pauses – and had had to write complaints with his hands chained together.

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.

3. Under Article 5 § 4 of the Convention the applicant complained that he could not obtain a judicial review of his detention. Article 5 § 4 of the Convention reads as follows:

“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 Government submitted that the domestic law, namely Article 220 § 1 of the Code of Criminal Procedure of 1960, had provided the applicant with a right to seek a judicial review of his detention. The prison government had not stopped the applicant’s complaints and applications. As to the length of the proceedings by which the applicant had sought to challenge the lawfulness of his pre-trial detention, the Government referred to the decision of the Presidium of the Kaliningrad Regional Court of 16 September 2002 . This decision had set aside the decisions of 4 September and 15 December 2000 because they had been an obstacle to the review of the detention. The review of the detention had thus been resumed with a view to redress any possible violation of the applicant’s rights.

The applicant pointed out that the Government had in fact acknowledged that his application for release had still not been considered.

The Court cannot agree with the Government that this complaint is premature because domestic proceedings have been re-opened. The purpose of Article 5 § 4 of the Convention is to secure release from detention. It is not clear how the examination of the applicant’s application for release from pre-trial custody of 30 July 2000 could be of any meaning since it has been more than two years that the applicant stopped being “detained” within the meaning of Article 5 § 4 and is serving his sentence.

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.

4. Under Article 6 § 3 (c) the applicant complained about being unable to choose his defence counsel. Article 6 § 3 (c) reads as follows:

“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...”

The Government argued that the issue of the applicant’s representation by his relatives had been considered together with the applicant’s application for release. As the respective decisions had been quashed the proceedings were pending and the applicant could not have been said to have exhausted all domestic remedies available to him.

The applicant averred that this complaint could not have been considered as premature two years after the trial to which his relatives had not been admitted as counsel.

As was the case with the previous complaint, the Court cannot agree with the Government that this complaint is premature. It is true that the decision of 4 September – the one by which the Moskovskiy District Court refused to admit the applicant’s relatives as defence counsel – has now been set aside and remitted for a fresh examination. But the annulment of this decision cannot retrospectively change the fact that the applicant was not represented at the trial on 25 December 2001 by a person in whom he had confidence. The annulment did not concern the actual finding of guilt and there is nothing to suggest that it will lead to a re-hearing of the substance of the applicant’s case in which he could possibly be differently represented. As to the Government’s claim that the applicant had not exhausted the domestic remedies available to him, the Court notes that this matter was raised in the applicant’s points of appeal, but the Kaliningrad Regional Court did not give any answer to it.

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.

5. Lastly, the Court has examined the remainder of the applicant’s complaints as submitted by him.

However, having regard to all material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints

(a) that the prison conditions were contrary to Article 3 of the Convention;

(b) that due to the fact that he was detained under such prison conditions he did not have adequate time and facilities for the preparation of his defence contrary to Article 6 § 3 (b) of the Convention;

(c) that his application for release was not examined, contrary to Article 5 § 4 of the Convention;

(d) that he was not allowed to defend himself through legal assistance of own choosing contrary to Article 6 § 3 (c) of the Convention.

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis              Deputy Registrar President