Facts:
On 1 March 2001 patrol officers from Khamovniki police station in Moscow arrested the first applicant (the applicant), Mr Denisenko, and the second applicant, Mr Bogdanchikov, on suspicion of attempted murder and robbery by an organised gang.

Criminal proceedings
On 2 March 2001 he was examined by a narcotics specialist. On 4 March the Khamovniki district prosecutor of Moscow authorised the applicant’s pre-trial detention after which he was charged with attempted aggravated murder and several robberies committed in concert. His and his co-accused’s detention was further extended until 2 June. The applicant applied for judicial review of the lawfulness and reasonableness of his detention but his application was dismissed by the District Court of Moscow and on appeal by the Moscow City Court. The detention was subsequently extended by the prosecutor and the decision was not challenged by the applicant. On 4 July 2002 the applicant was sentenced to twelve years’ imprisonment.

Alleged ill-treatment
On 2 March 2001, police officers from Khamovniki police station had ill-treated the applicant with a view to extracting a confession. They had hit him on the head with a pile of books and a plastic bottle. They had also hit him on the body with a wooden board, injuring his coccyx. They had kicked him in the area of the kidneys and, finally, had handcuffed him to a radiator, causing burns on his wrist. Being unable to stand the ill treatment, the applicant had confessed. His mother sent numerous telegrams asking for criminal proceedings against the police officers, but the investigator decided not to institute such proceedings. The applicant raised the ill-treatment issue at trial and requested the court to exclude his confession because obtained under duress, but the trial court refused to exclude the evidence.

Conditions of detention
From 5 March 2001 to 15 July 2002 the applicants were held in remand centre IZ-77/2 in Moscow in bad conditions: the applicant alleged that the prison cell was overcrowded and that the temperature and sanitary conditions in prison were unsatisfactory. Moreover he alleged that, on the days of court hearing at the Khamovnicheskiy District Court, he would wake up at 5 am, he would not be given any food or drink, and would occasionally spend more than ten hours a day in the courthouse cell.

Law:
The Court first declared the second applicant’s application inadmissible for being lodged out of time under to Article 35 §§ 1 and 4 of the Convention.

The Court then considered the first applicant’s pleas.

The Court first found a violation of Article 3 of the Convention on account of the first applicant’s ill-treatment.

The Court noted that the first applicant had used a domestic remedy which was apparently sufficient, thus he could not be expected to also have tried others that were probably no more likely to be successful. The claim was admissible.

The Court found a violation of Article 3 under its procedural limb for failure by the Russian authorities to carry out adequate investigations into the applicant’s allegations of ill-treatment. The general principle is that, where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, the authorities must take all reasonable steps available to them to secure the evidence concerning the incident. On the facts of the case, the wrist injury amounted to an “arguable claim” of ill-treatment. Although an inquiry was opened shortly after the applicant’s complaint, the question before the Court was whether the investigation was effective. Given the rather complex circumstances surrounding the applicant’s arrest, it was particularly important to elucidate them. However the inquiry did not take into account any submissions by the applicant, failed to consider some pieces of evidence, and it based the decision not to open a criminal case on the testimonies of the officers who had participated in the arrest, showing a lack of independence on the part of the investigator. It contained further inconsistencies and critical flaws which led the court to the conclusion that the investigation was not sufficient to establish the relevant facts.

The Court also found a violation of Article 3 under its substantive limb for ill-treatment of the applicant. The Court noted that some of the facts were undisputed by the parties and that those facts concerning the treatment of the applicant between his arrest and his examination by a narcotics expert were sufficient to prove an ill-treatment. The Court reiterated the principle that in order for a punishment or treatment to be “inhuman” or “degrading”, it must have aroused fear, suffering or humiliation which must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. In this case, in the absence of any violent behaviour on the part of the applicant and having regard to the nature of the treatment, its duration and the resulting bodily injury, the Court considered that the suffering experienced by the applicant constituted inhuman and degrading treatment.

The Court then found a violation of Article 3 of the Convention on account of the applicant’s conditions of detention in remand centre IZ-77/2 in Moscow.

As regards the question of admissibility, the complaint was held by the Court to be admissible given that it could not be rejected for failure to exhaust domestic remedies.

Although the parties disagreed on certain aspects of the applicant’s conditions of detention, both parties agreed that the centre was overcrowded. Referring to previous case-law in which a similar lack of personal space was considered to be so extreme to justify in itself a violation of Article 3, and in the absence of any information as to whether the first applicant was afforded daily exercise, the Court concluded that the applicant’s detention for one year and four months in the cramped conditions described was sufficient to cause distress exceeding the level of suffering inherent in detention and thus amounted to inhuman and degrading treatment under Article 3 of the Convention.

The Court further found a violation of Article 3 of the Convention on account of the applicant’s conditions of confinement at the Courthouse.

Contrary to the Government’s assertion, the applicant had raised the question of lack of food on the hearings, thus the complaint was not manifestly ill-founded and was admissible.

The Government failed to provide information as to the conditions of detention, nor did they contest the applicant’s detailed description of those conditions. The Court thus found that according to the information provided by the first applicant and not contested by the Government, he was detained in cramped conditions on at least six days. Although the first applicant’s detention in these cramped conditions was not continuous, the Court considered that the cumulative effect of the first applicant’s detention in the overcrowded, poorly ventilated and poorly lit courthouse cells, without food, drink or free access to the toilet, must have been of an intensity such as to induce physical suffering and mental fatigue. This must have been further aggravated by the fact that the above treatment occurred during the first applicant’s trial, that is, when he most needed his powers of concentration and mental alertness. Thus such conditions of detention amounted to inhuman or degrading treatment.

The Court found no violation of Article 5(1) of the Convention on account of the fact that there had been no legal basis for the applicant’s detention after March 2001.

The Court noted that the applicant’s placement in custody was in compliance with the law. However, the “lawfulness” of detention under domestic law is not always the decisive element. On the facts of the case, the Court agreed with the Government and concluded that the applicant’s detention from 12 March to 27 April 2001 was “lawful” for the purposes of Article 5 § 1 of the Convention.

The Court found no violation of Article 5 of the Convention on account of the unreasonableness of the applicant’s detention.

The Court declared inadmissible the applicant’s complaint under Article 5(3) concerning the period of his detention after 2 June 2001. Instead, in the complaint concerning his detention before that date was declared admissible.

The period of detention under consideration lasted for three months. It falls in the first place to the national authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must, while paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of a public interest requirement justifying a departure from the rule in Article 5, and must set them out in their decisions on the applications for release. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. In this case, to justify the first applicant’s detention the domestic authorities relied on the fact that the applicant had been apprehended ‘in flagrante delicto’ and that the victims had identified him as one of the perpetrators, on the the gravity of the charges against the first applicant and on the risk that he might abscond and interfere with the establishment of the truth, and on the need to carry out further confrontations with the victims, obtain the results of several forensic examinations and secure his access to the case file. The Court found that these justifications were relevant and sufficient. The Court did not find any failure on the part of the authorities to act with due diligence and thus concluded that there was no violation of Article 5(3).

The Court ordered that the Russian Government pay the applicant EUR 5,000 in accordance with Article 44 § 2 of the Convention.