Communicated on 2 March 2016

THIRD SECTION

Application no. 54271/12 Zufar Karsheyevich ACHILOV and Vladimir Viktorovich IVANOV against Russia lodged on 23 June 2012

STATEMENT OF FACTS

The applicants, Mr Zufar Karsheyevich Achilov and Mr Vladimir Viktorovich Ivanov, are Russian nationals, who were born in 1958 and 1959 respectively. They are serving prison terms in Apsheronsk, Krasnodar Region. The first applicant is represented before the Court by Mr S. Bogdanov, a lawyer practising in Severskaya, Krasnodar Region.

A. The circumstances of the case

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

In 2005-12 the applicants worked for the Gelenzhik Human Rights Centre. The first applicant also acted a registered private entrepreneur. Among their various activities, the applicants were involved in tracking down unlawfully constructed buildings in the town of Gelenzhik and reporting them to the authorities. In the absence of adequate replies, they would also initiate various proceedings before the civil or commercial courts. It appears that they also had recourse to other actions such as demonstrations.

1. Arrest, alleged ill-treatment, detention on remand and trial

According to the first applicant, in January 2012 Mr V. sought his legal advice in relation to an allegedly unlawful edifice next to his house. The applicant brought civil proceedings against P., the owner of the building. In the applicant ’ s submission, P. offered a sum of money as a friendly settlement. The applicants were then arrested when receiving the money (see below).

The police had provided Mr P. with marked money that he was instructed to hand it over to the applicants during a meeting on 20 February 2012. At 8 or 8.30 p.m. on this date the applicants were arrested in the café where they were meeting Mr P. For some time the applicants were kept down on the floor with their hands cuffed behind their backs. After midnight they were taken to a police station. The applicants remained handcuffed and were given no food and no water. They were refused access to a toilet.

Allegedly, the applicants were beaten up there by officers S., K., I., and Ch. under the supervision of chief officer M. They used the so-called “rack” technique.

On the same day, Mr Achilov was placed in cell no. 7 of the temporary detention centre. Allegedly, two men (in the applicants ’ submission, police officers presenting as detainees) threated him with rape and torture. Mr Achilov had two interviews with chief officer M. No lawyer was present.

On 21 February 2012 Mr Achilov had an interview with investigator Z. where he made detailed statements in relati on to the charges under Article 159 of the Criminal Code (fraud). It appears that A., a lawyer, was present during the interview.

An arrest record was compiled on the same date, indicating 11.40 a.m. on this day as the time of “arrest” for the purpose of Articles 91 and 92 of the Code of Criminal Procedure (CCrP) (see “Relevant domestic law and practice” below). The applicant made a written objection in the arrest record, averring that he had been arrested at 8 or 8.30 p.m. the day before.

On 21 or 22 February 2012 the regional office of the Federal Security Bureau (“the FSB”) provided the investigator with recordings of the applicants ’ telephone conversations (see also sections 2 and 3 below).

On 23 February 2012 a court ordered the first applicant ’ s continued detention on remand until 21 April 2012 in the following terms:

“Having regard to the circumstances and nature of the crime and the information relating to the [the applicant ’ s personality], no other preventive measure can be chosen in respect of him.”

Mr Achilov was assisted by A., his lawyer, at the detention hearing. On the same day, the applicant withdrew his earlier admissions, stating that they had been made under duress.

The three-day time-limit for appeal against the detention order expired on Sunday 26 February 2012. At 7 p.m. on the next working day (27 February 2012) Mr Achilov ’ s statement of appeal was registered to be dispatched through the temporary detention centre. It was received by the District Court on 29 February 2012. The District Court judge refused to forward the appeal as it had been lodged out of time. The applicant was informed accordingly on 14 March 2012. On 21 March 2012 the Krasnodar Regional Court heard representations from A., examined his statement of appeal and upheld the detention order. The appeal court dismissed as “unfounded” the argument that the statutory forty-eight-hour period had expired on 22 February 2012.

In the meantime, new complaints were lodged by two other victims of the alleged fraud. All the cases were joined.

On 18 April 2012 the court extended the first applicant ’ s detention on these charges. The court stated that the law prevented the court from amending the preventive measure where the reasons given in the initial order remained valid; the court also mentioned that the applicant was suspected of two further offences that were classified as “serious” under the Criminal Code.

Mr Achilov and his new counsel, B., lodged appeals against this extension order. An appeal hearing was scheduled for 16 May 2012. On 10 May 2012 the notifications dated 3 May 2012 were dispatched to the applicant and his counsel. They received the notifications on 17 May 2012. In the meantime, on 16 May 2012 the appeal court heard representations from the prosecutor and upheld the extension. The applicant and his counsel were not present at the hearing. The appeal court stated that Mr Achilov was not “charged with an offence relating to entrepreneurial activities”.

In the meantime, in April 2012 the charges were reclassified to fall within the scope of Article 163 of the Criminal Code (extortion).

On 18 May 2012 the Town Court again extended the first applicant ’ s detention until 21 June 2012, referring to the seriousness of the charges entailing a fifteen-year prison sentence, the continuing presence of the initial reasons for detention and the need for additional time to complete the investigation.

A similar extension was then issued on 15 June 2012.

2. Trial

In or around July 2012 the criminal case against the applicants and two others was submitted for trial before Gelenzhik Town Court.

Allegedly, between 19 July 2012 and 30 April 2013 during the court hearings the applicants were kept in a metal cage.

On 19 July 2012 the Town Court extended the applicants ’ detention pending trial until January 2013 in the following terms:

“The case file contains sufficient elements, including in relation to the defendants ’ personalities, that plead for the extension of their detention pending trial. The grounds cited in the initial detention order persist.”

It appears that on 23 December 2012 an investigator refused to institute criminal proceedings against the officers, who had allegedly beaten up or threated the applicants after their arrest. The investigator also declared lawful the use of handcuffs during the arrest.

By judgment of 30 April 2013 the Town Court convicted the applicants as charged and sentenced them to eleven and thirteen years ’ imprisonment (to be counted from 21 February 2012) respectively.

On 13 August 2013 Krasnodar Regional Court upheld the judgment.

3. Interception of telephone communications

On 3 September 2011 the regional office of the FSB ordered the tapping of the applicants ’ telephone conversations and sought judicial authorisation for this measure. The officer referred to item no. 543 of the so-called “operative control” ( оперативный учет ), according to which Mr Ivanov was suspected of organisation of an “extremist community”, which was a criminal offence under Article 282.1 of the Criminal Code. In the officer ’ s view, Mr Achilov had been and remained in contact with Mr Ivanov and thus could have information about the community and Mr Ivanov ’ s activities.

By two judgments of 3 October 2011 an unspecified judge of Oktyabrskiy District Court, Novorossiysk authorised the tapping of the applicants ’ conversations on three mobile telephone numbers from 3 October 2011 for 180 days.

Allegedly, the applicants learnt about the tapping in June 2012 when they studied the material in the case file concerning the criminal case against them (see sections 1 and 2 above). The file did not contain the judgments of 3 October 2011.

By judgments of 8 October 2012 the Krasnodar Regional Court “declassified” the above court decisions.

During the trial (section 2 above) the prosecutor submitted copies of the court decisions authorising the tapping of the applicants ’ telephone conversations between October 2011 and February 2012. The decisions did not contain the name of the authorising judge and no official stamp of the authorising court could be seen thereon.

Instead, Mr Achilov sought the institution of criminal proceedings against the officers who had carried out the tapping of his telephone conversations, allegedly without warrant. On 8 October 2012 an investigator refused to open an investigation stating that on 3 October 2011 a judge had issued such an authorisation. The applicant sought judicial review of the refusal to prosecute. On 18 March 2013 the Krasnodar Garrison Military Court heard evidence from the representative of the investigations department and upheld the judgment. The applicant did not participate in the hearing since Russian law did not authorise the transport of detainees to hearings that were not related to their criminal charges. On 27 June 2013 the Severo-Kavkazskiy Command Military Court heard evidence from the parties and upheld the judgment.

The second applicant also sought access to item no. 543 of the “operative control”. In February 2013 the regional office of the FSB refused in the following terms:

“Pursuant to section 5 of the Operational and Search Activities Act, at present you have not acquired the right to have access to the information received in the framework of operative-control item no. 543 as you are not a person whose guilt has not been established in the relevant procedure (by way of a refusal to institute criminal proceedings or to discontinue such proceedings for lack of evidence that a crime has been committed or corpus delicti ...

Within the measures taken for the purposes of item no. 543 we received information indicating that you, Mr Achilov, [and two others] had committed crimes under Article 159 of the Criminal Code. The relevant material had then been transferred to [the investigating authority] in order to take a decision on whether or not to institute criminal proceedings. Such proceedings were instituted on 21 February 2012 ... We have no other information that would indicate that you had committed other offences, for instance under Article 282.1 of the Criminal Code.”

The second applicant did not seek judicial review of the above refusal of access to the information.

Between 2013 and 2015 the second applicant unsuccessfully tried to obtain from the District and Regional Courts and the FSB valid copies of the judgments of 3 October 2011 and 8 October 2012.

4. Conditions of detention

Between February 2012 and August 2013 the applicants were kept, for varying consecutive periods of time, in the temporary detention centre in Gelenzhik (where the proceedings were pending) or in remand centre no. 23/3 in the town of Novorossiysk.

As to the temporary detention centre, the first applicant was kept together with three other detainees in a cell measuring 8 sq. m; there were no outdoor exercise periods on weekends and holidays; the lighting and food were poor; there was no ventilation; nor was there adequate bedding; there were lots of pests; there was no hot water in the showers; the toilet area was not sufficiently partitioned from the rest of the cell. In his application form of 1 April 2013 the applicant also alleged that the cells, including the toilet area, had been subject to video surveillance by the staff of the facility.

In reply to the first applicant ’ s complaints, the town prosecutor ’ s office stated that “measures had been taken to remedy the violations”.

As to Novorossiysk remand centre no. 23/3, the first applicant also alleged cramped conditions. For instance, he was kept with at least nineteen detainees in cell no. 65, which measured 30 to 40 sq. m. and was designed to accommodate ten detainees; the detainees had to sleep in shifts; the cell had only one toilet and there was no sink; nor was there ventilation, which was indispensable during the hot summer period in the region; further, poor lighting made it difficult to write or read. In September 2012 the first applicant was transferred to cell no. 91, where the conditions were similar. There the detainees smoked in the cells. The food was unacceptable, consisting mainly of cabbage; no meat, fruit or vegetables were provided.

In February 2014 the second applicant submitted to the Court a similar account of his own conditions of detention.

B. Relevant domestic law and practice

1. Arrest and detention procedures in criminal cases

The CCrP defines “arrest” ( задержание ) as a measure of compulsion for forty-eight hours following the “moment of actual arrest” (Article 5 of the CCrP). The “actual arrest” is understood as the moment when the suspect has been deprived of his freedom of movement (see, for instance, decision no. 33-10289/2012 of 12 July 2012 of Saint Petersburg City Court). The end time is related to the date and time when the court decision authorising detention on remand ( заключение под стражу ) has been taken (Articles 10 and 94 of the Code). If following the expiry of the forty-eight-hour period no detention order has been issued by a court, the detainee should be released without delay (Articles 10 and 94 of the Code).

Following a judicial refusal of detention on remand, a new request for detention on remand can only be lodged if there are new circumstances justifying such a request (Article 108 of the CCrP).

Pursuant to Articles 91 and 92 of the CCrP, following the escorting of the person to a police station or to be interviewed by an investigator, an arrest record should be compiled within three hours.

Articles 108 and 109 of the CCrP contain rules relating to detention on remand. Under Article 108 § 1.1, a person suspected or accused of the offences under, inter alia , Article 159 of the Criminal Code could not be detained pending the investigation where the relevant offence “had been committed in relation to [the person ’ s] entrepreneurial activities”.

Entrepreneurial activities are defined as the activities carried out by a person, who is registered as an entrepreneur, in an autonomous manner, running a risk of loss, with the aim of receiving regular income from using property, selling goods or providing service s (see decision nos. 28-O-O and 1521-O of 25 January and 24 September 2012 respectively of the Constitutional Court, and ruling no. 41 of 19 December 2013 of the Plenary Supreme Court of Russia, paragraph 8).

2. Interception of telephone communications

Investigative measures entailing restrictions on the constitutional right to protection of correspondence and telephone communications are allowable on the basis of a court decision, if the authorities have information about (i) indications of a criminal offence being planned or committed, or already committed; (ii) people who are planning or committing an offence, or have already committed it, and (iii) events, actions or inaction that create threat to the State, military, economic or ecological security of Russia (section 8 of the Operational and Search Activities Act). In urgent cases when a serious or a particularly serious offence might be committed or where there is information about events, actions or inaction creating a threat to the State, military, economic or ecological security of Russia, investigative measures can be carried out without a prior court decision. A court should be notified within twenty-four hours; a court authorisation should be obtained within forty-eight hours or the investigative measure should be stopped (ibid.). Interception ( прослушивание ) of telephone or other communications is allowable only in respect of people who are suspected or accused of criminal offences or in respect of people who might have information about such offences. Where a criminal case is opened in respect of the relevant person, the recordings of the conversations should be passed on to the investigator.

Where the tapped person ’ s guilt in the relevant offence has not been established in the relevant procedure (that is where the authorities refused to institute criminal proceedings against this person or discontinued them for lack of evidence that a crime has been committed or corpus delicti ), the person has a right of access to the information held by the authority that carried out the investigative measure (the interception of communications, for instance) (section 5 of the Act). The refusal of access can be challenged before a court.

3. Video surveillance in detention facilities

Section 34 of the Custody Act allows the use of audio- and video-recording equipment by the staff of detention facilities for ensuring the supervision of the detainees.

The detention facilities ’ right to use technical equipment for ensuring the supervision and control of detainees is a proportionate restriction is part of the broader system that aims to protect the detainees ’ and staff ’ s personal security, and guarantee respect for the internal rules and regulations of the institution (see decision no. 1393-O-O of 19 October 2010 of the Constitutional Court of Russia; decision in case no. 33-3832/2011 of 13 December 2011 by Tomsk Regional Court; and decision in case no. 33 ‑ 42663 of 22 December 2011 of Moscow City Court).

COMPLAINTS

The applicants complain under Articles 3 and 13 of the Convention about the conditions of their detention in 2012 and 2013 and the lack of preventive and other remedies.

They also refer to the video surveillance in the cells and the tapping of their telephone conversations.

Mr Achilov also complains, under Article 5 of the Convention, that his arrest and pre-trial detention were unlawful and that his detention pending investigation and trial was not justified by relevant and sufficient reasons; and that the defence was not afforded an opportunity to be present at the hearing on 16 May 2012 relating to their detention.

QUESTIONS TO THE PARTIES

Regarding both applicants:

1. Were there violations of Articles 3 and 13 of the Convention on account of the material conditions of the applicants ’ consecutive periods of detention in Gelenzhik temporary detention centre and Novorossiysk remand centre no. 23/3 between February 2012 and August 2013?

2. Was there a violation of Article 3 or 8 of the Convention on account of the video surveillance in the cells in the temporary detention centre during the same period? Did such surveillance have a proper legal basis? Was it a proportionate solution, in particular on account of the full coverage of the toilet area?

3. Was there a violation of Article 8 of the Convention on account of the listening into and recording of the telephone communications involving the applicants (see Roman Zakharov v. Russia [GC], no. 47143/06 , 4 December 2015) ? In particular:

- Did the authorising court ascertain that there had been a reasonable suspicion against the second applicant as regards activities falling with the scope of Article 282.1 of the Criminal Code; and reasonable grounds to believe that the first applicant did have or might have information relating to such activities?

- Did the relevant domestic law meet the quality-of-law requirement, inter alia , on account of the interception of communications in respect of persons who “might have information” about the crimes (being) committed by another person (section 8 of the Operational-and-Search Activities Act)?

- Did the court apply the necessity and proportionality tests in respect of both applicants? In particular, was it shown that the legitimate aims (for instance, prevention of disorder or crime) could not be reasonably attained by using other less intrusive means?

Regarding Mr Achilov:

4. Were there violations of Article 5 § 1 of the Convention in respect of Mr Achilov on account of: (i) the delay in compiling the arrest record, in breach of Article 92 of the CCrP and the unrecorded deprivation of liberty until noon on 21 February 2012; (ii) the consequent absence of any legal basis for Mr Achilov ’ s detention from 8.30 p.m. on 22 February until when the detention order was issued on 23 February 2012; (iii) the impact of the above deficiencies, together with the issue under Article 108 § 1.1 of the CCrP, on the legality of the ensuing period(s) of the applicant ’ s detention pending investigation (cf. Smolik v. Ukraine , no. 11778/05 , § 46, 19 January 2012) ?

5. Was there a violation of Article 5 § 3 of the Convention on account of the reasons adduced for the first applicant ’ s detention pending investigation and trial?

6. Was there a violation of Article 5 § 4 of the Convention on account of the defence being belatedly notified of the appeal hearing on 16 May 2012?