Communicated on 19 September 2016

THIRD SECTION

Application no. 43744/09 Valeriy Aleksandrovich PODMARKOV against Russia lodged on 10 July 2009

STATEMENT OF FACTS

The applicant, Mr Valeriy Aleksandrovich Podmarkov , is a Russian national who was born in 1968 and lives in Penza.

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 28 January 2006 the applicant was arrested on suspicion of several counts of illegal drug trafficking, organising a criminal group and abuse of public office. Two days later the Pervomayskiy District Court of Penza ordered his detention.

On 3 April 2007 the criminal case against the applicant and his co ‑ defendants was remitted to the Penza Regional Court for an examination on the merits.

The trial hearings were open to the public. However, on 16 October 2007 the prosecutor asked the court to hold the trial in camera, referring to a letter from the local Interior Department allegedly containing information classified as State secrets to be examined as evidence. The court accepted the request and closed all the hearings that followed to the public.

The applicant ’ s counsel immediately asked the court to reconsider the in camera decision, since the letter containing State secrets had already been seen and examined at the trial. The prosecutor objected, noting that the court was yet to consider evidence relating to the operational-search activities, which constituted State secrets. The court once again sided with the prosecutor. The remaining hearings were held in camera.

During the closing arguments, the prosecutor dropped most of the charges against the applicant, in particular those concerning illegal drug trafficking and organising a criminal group. On 21 December 2007 the Regional Court convicted the applicant of abuse of public office and sentenced him to three and a half years ’ imprisonment, to be served in a settlement colony. The criminal proceedings against him relating to the remaining charges were discontinued.

The applicant appealed. In particular, he complained that the decision of the trial court to hold the hearings in camera and subsequent dismissal of his counsel ’ s request to open the trial to the public were unfair and poorly reasoned. On 25 August 2008 the Supreme Court of the Russian Federation upheld the judgment of 21 December 2007 on appeal, leaving the applicant ’ s argument about the trial in camera without consideration. The appeal hearings were held in the applicant ’ s absence, and he was not represented by a lawyer either.

On 23 January 2009 the applicant, who was still detained in remand prison no. IZ/58-1 in the Perm Region, was served with a copy of the appeal judgment. On 29 January 2009 he was transferred to settlement colony no. 12 in the Perm Region. On 20 April 2009 he was conditionally released.

2. The applicant ’ s attempts to receive compensation

On 29 September 2010 the applicant applied to the Regional Court for compensation for the delayed enforcement of the judgment in the criminal case against him, relying on the Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time Act (Federal Law no. 68-FZ of 30 April 2010 – hereinafter “the Compensation Act”). The applicant said, inter alia, that despite the fact that on 25 August 2008 the judgment against him had become final, he had been detained in a pre-trial detention facility for another five months in a detention regime which was dramatically different from that in a settlement colony , where he should have been transferred in accordance with the trial court ’ s judgment.

On 1 October 2010 the Regional Court, acting in a single judge formation, dismissed the applicant ’ s complaint. It found that the Compensation Act did not apply to the delayed enforcement of judgments in criminal cases. On 30 November 2010 the decision was upheld on appeal by the Supreme Court of the Russian Federation.

On an unspecified date in September 2013 the applicant applied to the Regional Court for formal acknowledgement of his right to rehabilitation following the partial discontinuation of the criminal proceedings against him in 2007. On 1 October 2013 the Regional Court allowed his application. Relying on that decision, the applicant lodged a tort claim against the Treasury with the Leninskiy District Court of Penza. He once again complained that his transfer from the remand prison to the settlement colony had been delayed , emphasising the difference between the regime conditions in those two types of facilities. He argued that the delay clearly constituted a more severe punishment than that which had been imposed by the trial court. On 17 March 2014 the Leninskiy District Court of Penza partially allowed his claim, but his arguments relating to the delayed transfer were not addressed. On 1 July 2014 the Regional Court upheld the decision on appeal.

B. Relevant domestic law

1. Code of Criminal Procedure of the Russian Federation (“the CCrP ”)

Article 241 of the CCrP provides that criminal cases should be heard in public. A court may order a hearing to be held in camera ( i ) if a public hearing could lead to the disclosure of State secrets or other sensitive data; (ii) in cases concerning defendants under age of sixteen; (iii) if a public hearing could result in the disclosure of information relating to the private lives of participants in the trial; or (iv) to guarantee the safety of such participants or their next of kin. In all such cases the decision to hold a hearing in camera should be justified by reference to certain factual circumstances, requiring a hearing to be held in camera.

In accordance with Article 388 § 4 of the CCrP (in force at the material time), a decision by an appellate court should be sent to a trial court for enforcement within seven days of the date of delivery.

2. Detention on remand and post-conviction detention

In accordance with the Detention of Suspects Act (Federal Law no. 103 ‑ FZ of 15 July 1995), convicted criminals should be detained separately from those under investigation or awaiting trial. Inmates in remand prisons live in locked and guarded cells and have the right to one hour of outdoor exercise per day in a designated courtyard. The courtyard should be equipped with benches for sitting. Inmates may be deprived of their daily exercise as punishment for disciplinary offences. They may spend a very limited amount of money on personal needs, have two short and two long family visits per year and receive four parcels.

Under the Russian Code of Execution of Criminal Sentences of 8 January 1997, there are five main types of penal institution for convicted criminals: settlement colony, general regime colony, strict regime colony, special regime colony and prison. The regime conditions in a settlement colony are the least severe. In particular, convicts do not live in cells or barracks but in unguarded dormitories. The number and length of family visits is not limited, nor is the possibility to receive parcels and money from home. As an incentive for good behaviour , and subject to the approval of the administration, convicts may live outside the colony with their families in rented flats, leave the colony for holidays and weekends, move freely within the town or district where the colony is located, and so forth. They do not wear uniforms and may spend their money however they wish. Convicts may also be given permission to work in another town or district or participate in distance-learning programmes in higher education establishments. By contrast, the regime in prisons is the most severe.

COMPLAINTS

The applicant complains under Article 5 of the Convention that he was made to remain in a remand prison after 25 August 2008 even though his transfer to the significantly less severe regime conditions of a settlement colony had been authorised by a final judgment. The applicant also complains under Article 6 § 1 that his criminal case was not heard in public.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?

2. Was the exclusion of the public “strictly necessary”, within the meaning of Article 6 § 1 of the Convention?

3. Did the applicant ’ s detention between 25 August 2008 (when the judgment in the criminal case against him became final) and 29 January 2009 (when he was transferred to the settlement colony) comply with the requirements of Article 5 § 1 (a) of the Convention? What were the reasons for the delay in the applicant ’ s transfer from the remand prison to the settlement colony (see, for comparison, Trepashkin v. Russia ( dec. ), no. 14248/05, 22 January 2009, and Saadi v. the United Kingdom [GC], no. 13229/03, § 69, ECHR 2008, with further references)?