PROCEDURE

1.  The case originated in an application (no. 66802/01) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Gennadiy Valentinovich Dorokhov (“the applicant”), on 21 July 2000.

2.  The applicant, who had been granted legal aid, was represented by Ms L.I. Alekseyeva, a lawyer practising in . The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the  at the European Court of Human Rights.

3.  The applicant alleged that the conditions of detention in the remand prison where he had been placed pending investigation and trial had amounted to inhuman and degrading treatment. He further complained that he had had no fair hearing of his case, since the court had refused to call certain witnesses.

4.  By a decision of 30 June 2005, the Court declared the application partly admissible.

5.  The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1967 and lives in .

A.  Criminal investigation and detention

7.  The applicant used to work as a public prosecutor. In 1998 the police charged him with blackmail and abuse of office. They alleged that the applicant had extorted several cars from the managers of a car repair shop, threatening to harass their business with criminal investigations. Thus, according to the prosecution, in 1997 the applicant was given a car in exchange for the discontinuation of the investigation into the allegedly illegal activities of the shop. Some time later he received from them another car of the same model. In 1998 he was given a new car which was more expensive than the previous one. The prosecution also accused the applicant of illegal possession of firearms, namely a gas handgun found at his place during the search.

8.  On 2 October 1998, the police arrested the applicant and detained him in remand prison IZ–48/1, Matrosskaya Tishina, in . On admission to the prison, the applicant was put in cell no. 210. The rest of the time he spent in four other cells, namely cells nos. 212, 260, 739 and 740.

1.  Cell 212

9.  On 8 February 1999, the applicant was put into cell no. 212. The parties’ descriptions of this cell differ.

10.  According to the applicant, the environment in this cell was so poor that he developed a skin rash.

11.  According to the Government, that cell measured 18.8 square metres and had six bunk beds. The cell had cold running water, a sink, and a toilet partitioned off from the rest of the cell. The prisoners’ food met quality standards established by regulations. There was no infection in the cell. The prisoners had an hour’s daily exercise. Once a week they had a bath and received fresh bedding.

2.  Cell 260

12.  On 11 February 1999, the applicant was moved to cell no. 260. The parties’ descriptions of this cell differ too.

13.  According to the applicant, this cell measured about 30 square metres and housed between eighteen and twenty-nine prisoners at different times (or twenty-five on average). Because the cell was overcrowded, during most of the seven months he was there the applicant had to share his bunk bed with other prisoners. But even on those few occasions when he had the bed to himself, he could not sleep because the lights and TV were always on, the ventilation was always off, and the prisoners talked day and night. Metal shutters covered both windows, keeping fresh air out. The toilet was not partitioned off from the rest of the cell and was in front of the guards’ peephole.

14.  According to the Government, that cell measured 38.9 square metres and had eighteen bunk beds. The cell had cold running water, a sink, and a toilet partitioned off from the rest of the cell. The prisoners’ food met statutory standards of quality. There was no infection in the cell. The prisoners had an hour’s daily exercise. Once a week they had a bath and received fresh bedding.

15.  Following the admissibility decision the applicant produced a written statement by Mr M., who had been detained in cell no. 260 between September 1997 and December 1999. He confirmed the applicant’s account of the conditions of detention there, namely that periodically the cell held up to twenty-nine people.

3.  Cells 739 and 740

16.  On 19 May 1999, the applicant was moved to cell no. 739, then to cell no. 740. These were hospital cells, and the applicant was put there while being treated for a broken leg.

17.  According to the Government, the area of the cells was 21.6 square metres and 24.5 square metres correspondingly. The first cell was equipped with four bunk beds and the second one had eight.

18.  According to the applicant, even though the prison administration knew that he was a former prosecutor, he had to share these cells with ordinary criminals. With a broken leg, the applicant would have been helpless had the criminals wished to attack him in revenge.

19.  According to the Government, the applicant was detained separately from ordinary criminals.

20.  On 7 June 1999, the applicant was returned to cell no. 260, where he stayed until his removal from the prison on 4 February 2000.

B.  Trial

21.  On 31 March 1999, on termination of the investigation the applicant and his lawyer were given access to the materials of the case file. On an unspecified date later the prosecution submitted the case file with the bill of indictment to the Zamoskvoretskiy District Court of Moscow for trial. The applicant was accused of having received three cars from the managers of the car repair shop as a bribe. The applicant was also accused of illegal possession of firearms.

22.  On 9 June 1999, referring to Article 223 of the Code of Criminal Procedure the applicant requested the District Court to summon two additional witnesses, Ms V. and Ms G. In his words, those witnesses worked in the prosecutor’s office at the material time; they had seen him pay for the first of the allegedly extorted three cars and therefore could arguably provide evidence for his acquittal. He indicated in his request that in the course of the pre-trial investigation he had asked for those people to be questioned but it had been refused.

23.  The request of 9 June 1999 was received by the administration of the detention facility the next day. However, it is unclear when they posted it.

24.  On 18 June 1999 the judge of the District Court examined the materials of the case file in camera and found the case ready for trial. The parties disagree as to whether the applicant’s request under Article 223 to call Ms V. and Ms G. had reached the court by that date: according to the applicant, it must have reached the court well before 18 June 1999; according to the Government, the request reached the court only on 23 June 1999, so the judge was unable to examine it.

25.  At the first hearing preceding the examination of the case on the merits the court asked the applicant whether he wished to call additional witnesses. The parties disagree as to whether the applicant used this opportunity to call Ms V. and Ms G.: according to the Government, he did not; according to the applicant, he did. From the transcript of the hearing provided by the applicant, it appears that the first hearing took place on 28 October 1999. The applicant asked the District Court to examine his request lodged earlier under Article 223 of the CCrP. The District Court replied that that motion had been received after the assignment of the case for trial. However, the District Court noted that it would be examined later, at the preliminary hearing stage.

26.  The applicant agreed that he was a client of the car repair shop and knew its managers. He also confirmed that he had bought several cars from them. However, in his words, those cars were sold to him and were not given as a bribe, as the prosecution suggested. He indicated that in mid-July 1997 Ms V. had seen him paying for the car; he had paid Mr Sh., who acted as an intermediary between the applicant and the car repair shop. The applicant also testified that Ms G. had been present at the time when he had handed money to Mr Sh., and that later the applicant had told her about the deal. In his words, he gave money to Mr Sh. in a closed envelope and did not specify what was in it, since Mr Sh. knew that it was money for the car. Later in the course of the trial the applicant referred on three occasions to the episode of July 1997 where Ms V. and Ms G. had been present.

27.  The court made several attempts to secure the attendance of Mr Sh. at the trial. However, Mr Sh. was absent from his address and according to his mother his whereabouts were unknown. The court decided to proceed with the case in his absence and read out the testimonies of that witness given during the face-to-face confrontation with the applicant.

28.  At the trial several witnesses were heard. The court heard Mr Br., Mr S., Mr G. and Mr A., who worked at the shop at the material time and had contacts with the accused. They stated that the applicant had threatened them with criminal prosecution and that they had bribed him with the cars. They had also given him cash, to be transferred to other law-enforcement agencies for their “protection”. The court also heard Mr B-k., who had bought the third car in Germany for the applicant. In his words, he had received the money for that car from Mr A., the managers of the car repair shop. Ms P., who had worked in the prosecutor’s office at the material time, testified at the trial that the applicant had asked her to suspend the investigation into the activities of the shop. Some time later the applicant had asked her to help the shop to obtain several licences necessary for their professional activities.

29.  The court further examined written statements from several witnesses obtained by the police during the preliminary investigation. It also examined material evidence and documents seized by the prosecution authorities which related to the applicant’s professional activities.

30.  Finally, the court examined wiretapping records made secretly by the Federal Security Service in the applicant’s office. The court noted that the wiretapping had been authorised by the Moscow City Court at the request of the Federal Security Service and therefore was admissible evidence. In the court’s opinion, the records of his telephone conversations corroborated the testimonies of witnesses heard at the trial and those questioned by the investigative authorities.

31.  The examination of evidence was followed by pleadings by both parties. The applicant pleaded not guilty.

32.  On 15 November 1999, the court convicted the applicant as charged and sentenced him to seven years’ imprisonment.

33.  After the trial, on 20 December 1999, the applicant asked the court to correct record of the hearing, because his request to call Ms V. and Ms G. had been omitted from the transcript of the first day of the hearing (28 October 1999). On 17 January 2000 the court refused to change the record, on the ground that it was true as it was.

34.  The applicant appealed. In the points of appeal he indicated that on 28 November 1998 he had requested the District Court to call witnesses Ms V. and Ms G., who could have confirmed that the applicant had paid for the cars. However, in the applicant’s words the court had ignored that request.

35.  On 1 March 2000, the Moscow City Court upheld the conviction on appeal, without, however, examining the applicant’s argument about witnesses Ms V. and Ms G.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

II.  RELEVANT DOMESTIC LAW AND PRACTICE

36.  Under Article 21 of the Detention Act of 1995, all detainees’ correspondence should go through the administration of the remand prison. Letters addressed to the courts should be posted by the administration within one day of their receipt from the detainee.

37.  At the time of the relevant events the Code of Criminal Procedure of 1960 (“the old CCrP”) was in force. Under Article 46 of that code the accused had the right to lodge procedural requests with the trial court.

38.  Under Article 221 of the old CCrP, after having received the case file from the prosecution with the bill of indictment, the judge, sitting in camera and without the parties, should decide whether or not the case is ready for trial. Under Articles 222 and 223 the judge should also examine written requests lodged by the defence. If the case is ready for trial the judge fixes the date for the preliminary hearing and draws up a list of witnesses to be called. This stage of the proceedings is called “assignment of the case to trial”.

39.  The trial commences with a preliminary hearing. Under Article 276 of the old CCrP, the judge should ask the parties whether they wish to call additional witnesses. If such a request is made, the court should hear the parties on that matter and give decision in the form of a ruling, which should be reasoned. The court may also call new witnesses of its own motion.

40.  In 1975 the Supreme Court of the  in a plenary session adopted Ruling no. 5, in which it directed the lower courts as follows:

“Requests received after the case has been assigned to trial but before the trial has begun, should be examined at the preliminary hearing. However, in order to secure their prompt examination the presiding judge may make certain preparatory arrangements beforehand (requests for information, references, and so on).”

The rulings of the Supreme Court adopted in plenary sessions had the force of law. Ruling no. 5, as amended later, was in force at the time of relevant events.

41.  After the preliminary hearing the court passes to the stage of “judicial investigation” (sudebnoye sledstviye, Chapter 23 of the old CCrP). This is the part of the trial when the court and the parties examine the evidence, hear and question witnesses, experts and so on. Once the “judicial investigation” is over, the court asks the parties whether they want to supplement the “judicial investigation” with any new elements of proof (Article 294 of the Code). At this moment the defence may ask again for new witnesses to be called.

42.  Following the “judicial investigation” the trial passes to the stage of pleadings. The accused person has the right to pronounce a speech called “the last word”. If in this “last word” he informs the court of important new elements of the case, the court should reopen the “judicial investigation” (Article 297 of the Code).

43.  Article 264 regulates the keeping of a trial record in the first instance court. It does not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record exists, it is not attached to the official trial record. A party to the proceedings may challenge before the presiding judge the accuracy of the official record within three days of receiving a copy of it.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

44.  The applicant complained under Article 3 of the Convention that the conditions in the remand prison had been inhuman. Article 3 reads as follows:

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

A.  The parties’ submissions

45.  The Government submitted, referring to their description of the cells, that the prison conditions were satisfactory. The prison was indeed overcrowded, but no worse than any other Russian prison in those years. Moreover, the authorities had had no intention of making him suffer. According to the Government, it was impossible to establish how many people had been detained with the applicant at the relevant time, since the official records had been destroyed in 2004 following the expiration of their storage period.

46.  Further, in the Government’s submissions, the applicant had always been provided with an individual sleeping place and necessary bedding: a mattress, a blanket, a pillow, two bed sheets and a pillowcase. The Government also provided written statements by prison guards. They confirmed that at the relevant time cells nos. 212, 260, 739 and 740 had contained “former officials [of law enforcement agencies]”.

47.  Finally, in recent years conditions in the prison had improved significantly. Thus, in 2004 the number of detainees in the remand prison where the applicant had been detained was 2.2 times lower than in 1998.

48.  The applicant insisted, referring to his description of the cells, that the prison conditions had been unsatisfactory. His case was not unique: the Court knew from other cases that conditions in Russian prisons were very poor. The authorities had intended to make him suffer because they had deliberately placed him in a cell with ordinary criminals. Furthermore, the recent improvements in general prison conditions were of no consequence for his case.

B.  The Court’s assessment

49.  An outline of the Court’s case-law under Article 3 of the Convention concerning the conditions of detention can be found in a number of judgments concerning Russia (see, in particular, Kalashnikov v. Russia, no. 47095/99, §§ 95 et seq., ECHR 2002VI, and Mayzit v. Russia no. 63378/00, §§ 34 et seq., 20 January 2005), and the Court does not consider it necessary to repeat it here.

50.  As to the complaint that the applicant had been placed in a cell with hostile cellmates, the parties disagreed about the facts. However, in the Court’s view, there is no need to resolve this disagreement. Even if the cellmates did hold something against the applicant, there is no evidence that they actually mistreated him in any way. Their potential aggression never materialised, and the mere fear of ill-treatment in the circumstances of the case does not seem to be real enough to raise an issue under Article 3.

51.  As to the physical conditions of detention, the parties’ accounts also differ in many respects. The Court will consequently start with an issue that lends itself to more or less precise quantification, namely that of the overcrowding of the cells where the applicant had been detained, in particular, in cell no. 260.

52.  The Court emphasises that it cannot but welcome the efforts of the domestic authorities aimed at the improvement of the conditions of detention in Russian prisons by reducing the overall number of detainees (see paragraph 47 above). However, the Court’s task within the present case is to examine the applicant’s personal situation as it was at the relevant time. The Court notes that the applicant stayed in remand prison IZ 48/1 between 2 October 1998 and 4 February 2000. Therefore, the Government’s argument that the number of detainees in 2004 was significantly lower than in 1998 is irrelevant.

53.  The Government admitted that the cells where the applicant had been detained had been overcrowded. The Government’s assertion that the applicant had been assigned an “individual sleeping place” does not contradict this fact – the same sleeping place could have well been assigned to another detainee or detainees. The Government were unable to provide any figures as to the exact number of detainees there since the relevant records had been destroyed. At the same time they did not claim that the applicant’s account in respect of the number of detainees was untrue.

54.  The Court recalls its findings in Mayzit v. Russia, cited above, § 40, where it held as follows:

“From similar cases (see Kalashnikov v. Russia, cited above) the Court is aware that overcrowding in pre-trial detention facilities is a general problem in  (ibid., § 93). In these circumstances the Court does not find it of crucial importance to determine the exact number of inmates in the cells during the periods concerned. The material available suggests that at any given time there would be less than two square metres of space per inmate. Thus, in the Court’s view the cells were overcrowded, something which in itself raises an issue under Article 3 of the Convention.”

55.  The Court further noted that for nine months the applicant in that case had been confined to his cell with very limited space for himself. It transpires from the judgment that the severe and prolonged overcrowding of the cell was sufficient for the Court to find a violation of Article 3 of the Convention (ibid., §§ 41 and 42).

56.  By contrast, in other cases no violation of Article 3 was found, as the restricted space for sleeping was compensated for by the freedom of movement enjoyed by the detainees during the daytime (see Valašinas, cited above, §§ 103 and 107, and Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004).

57.  In the present case the Court observes that the applicant spent about ten months in cell no. 260. He claimed that within that period the cell, measuring thirty square metres, contained twenty-five people on average. The applicant’s account was confirmed by his former cell-mate Mr M. In the absence of any official data as to the number of detainees, the Court accepts the applicant’s account and concludes that the cell was severely overcrowded (less than two square metres of space per inmate).

58.  The Court further notes that such a long period of detention in cramped conditions must have caused him serious physical discomfort and mental suffering. The one-hour exercise periods were not sufficient to attenuate the negative effects of the overcrowding in the cells. Furthermore, such overcrowding precluded any privacy in everyday life, which is in itself a very traumatising experience. It is true that the authorities had not intended to humiliate the applicant or make him suffer. However, that does not remove the situation complained of from the scope of Article 3 of the Convention (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III).

59.  In sum, the above factors are sufficient to conclude that, as regards cell no. 260, the applicant was detained in degrading conditions, in breach of Article 3. Since the issue of severe and prolonged overcrowding of the cell in itself warrants a finding of a violation of Article 3, the Court will not go any further and explore other aspects of the conditions of detention in detention facility no. IZ-48/1.

60.  The Court therefore finds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

61.  The applicant complained under Article 6 § 3 (d) of the Convention that the court had not questioned crucial witnesses on his behalf. Article 6 § 3, as far as relevant, reads as follows:

“Everyone charged with a criminal offence has the following minimum rights:

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”

A.  The parties’ submissions

62.  The Government argued that the applicant’s rights had not been interfered with for the following reasons. First, requests to call witnesses were usually examined at preparatory hearings. But the court had been unable to examine the applicant’s request because it had been received after the preparatory hearing, namely on 23 June 1999. Second, since the applicant had not repeated the request at the main hearing, the court had had no reason to call Ms V. and Ms G.

63.  The applicant insisted on his complaint for the following reasons. First, for a careful reader of the prosecution file the necessity of calling Ms V. and Ms G. was self-evident. Second, the request must have reached the court well before the preparatory hearing, because the prison administration usually dispatched prisoners’ mail within one day. Third, even if the request had reached the court late, the court should have answered it as soon as it came. Fourth, the applicant had repeated the request in the main hearing, in his last plea, and in his appeal.

B.  The Court’s assessment

1.  General principles

64.  The Court points out that the guarantees of paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this Article, cited above. Consequently, the Court will consider the complaint concerning the failure to call witnesses Ms V. and Ms G. at the hearing under the two provisions taken together (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 25).

65.  The Court further reiterates that the right to call witnesses for the defence is not absolute and can be limited in the interests of the proper administration of justice. As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it primarily to them to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as it is indicated by the words “under the same conditions”, is full equality of arms in the matter (see, for example, Vidal v. Belgium, judgment of 25 March 1992, Series A no. 235-B, pp. 3233, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (see Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, § 89).

66.  Finally, the Court reiterates that its task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken and examined at the trial, were fair (see Asch, cited above, p. 10, § 26).

2.  Application of those principles in the present case

67.  The first point of controversy is whether or not the applicant made his request to call witnesses in an appropriate manner. The Court notes in this respect that on 9 June 1999 the applicant asked the court to summon two witnesses: Ms V. and Ms G. That request was lodged through the administration of the remand prison, as provided by the Detention Act 1995. The applicant’s letter was dispatched by the prison administration or should have been dispatched (see paragraph 36 above) on 10 June 1999. However, according to the Government, the letter reached the court only on 23 June 2003, which was almost a week after the case had been assigned to trial and the necessary arrangements had been made.

68.  The Government may be understood as claiming that the belated receipt of the request absolved the court from the duty to examine it. However, the Court notes that under Russian law the applicant had no other choice but to dispatch his request through the prison administration (see § 36). In such circumstances it was for the prison administration to ensure that it was delivered within a reasonable time. Given that the remand prison and the court were situated in the same city, the two weeks’ delivery time seems to be unusually long. It raises certain doubts as to when the request of 9 June 1999 was posted by the prison administration.

69.  Be that as it may, there is no need to speculate on this matter. The Court observes that Ruling no. 5 of 1975 by the Supreme Court clearly required the judge to examine the applicant’s request at the preliminary hearing, even if it was received after the assignment of the case to trial. The Government did not explain why the court had failed to do so.

70.  The applicant further alleged that during the trial he had repeated his request to call Ms V. and Ms G. The trial record did not contain any reference to such a request. However, the Court notes that at the first hearing the presiding judge clearly stated that he would return to the requests lodged under Article 223 later, which could have been reasonably interpreted as relating to the applicant’s request to call Ms V. and Ms G. Further, in the course of the trial the applicant’s lawyer drew the court’s attention to those two witnesses. Finally, the court of appeal remained silent about the reasons why the first-instance court had not summoned Ms G. and Ms V. If it was just for a simple omission or laxity on the part of the applicant, who had not made himself sufficiently clear, the court of appeal could have easily have said so. In such circumstances the Court concludes that the defence employed all lawful means at their disposal to obtain the attendance of the two witnesses.

71.  The Court thus concludes that the applicant made a reasonable effort to obtain the attendance of witnesses in his defence. The Government’s objection should therefore be dismissed. The next question to answer is whether the trial court, by not securing their attendance, breached the applicant’s right under Article 6 § 3 (d).

72.  The Court notes that, according to the prosecution, in 1997 the applicant had received the first car as a bribe. The applicant claimed that he had bought it and that Ms V. and Ms G. had seen him pay for it. In his request of 9 June 1999 the applicant explained what Ms V. and Ms G. would say and indicated their whereabouts. Therefore, the request to call witnesses was sufficiently reasoned, relevant to the subject matter of the accusation and could arguably have led to the applicant’s acquittal (see, in this respect, Perna v.  [GC], no. 48898/99, § 29, ECHR 2003V, and Guilloury v. France, no. 62236/00, § 64, 22 June 2006). In other words, it was not a clearly vexatious request to which the court was not supposed to answer.

73.  The Court further notes that the applicant’s offer to produce evidence was implicitly rejected by the trial court, without any reasons having been given. Moreover, the court of appeal did not address the applicant’s argument concerning the refusal of the lower court to call witnesses. The Court further notes that the applicant asked the first instance court to rectify the hearing record by putting on it his request to call Ms V. and Ms G. However, that request was rejected (see paragraph 33 above).

74.  The Court reiterates that the applicant’s request was clearly relevant to the subject matter of the accusation. However, as was confirmed by the defence in the course of the trial, neither Ms V. nor Ms G. had seen him paying money for the car to Mr Sh. In his words, he handed Mr Sh. a closed envelope and did not say what was inside. Only afterwards did he mention to Ms G. that he had paid money for the car to Mr Sh. In sum, the probative value of the testimony of Ms G. and Ms V. was very low. On the contrary, the arguments in favour of the applicant’s guilt were quite weighty. Several people testified at the trial that they had bribed him with the car. Therefore, even if Ms G. and Ms V. had been called and heard, their testimony would most likely not have led to the applicant’s acquittal. The Court reiterates in this respect that, although the silence of the trial court and the court of appeal in that respect is regrettable, regard must be had to the proceedings as a whole. In Vidal, cited above, the applicant’s conviction rested mostly on the materials of the case file and the testimonies of the co-defendants (§ 34). In the present case, on the contrary, the conviction was supported by a solid evidentiary base, in particular by the testimonies of several independent witnesses given at the trial. In view of that it is possible to distinguish the present case from Vidal, cited above.

75.  The Court concludes that the implicit refusal of the domestic courts to call witnesses for the defence, in the particular circumstances of the case, did not affect the overall fairness of the trial. Therefore, there has been no violation of Article 6 § 3 (d) taken in conjunction with Article 6 § 1.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

76.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

77.  Under Article 41 the applicant claimed 500,000  dollars. In his words, he needed that money to compensate his material losses, including legal costs, to carry out a public campaign for the restoration of his good name, and to cover expenses for medical treatment for himself and the members of his family.

78.  The Government maintained that the applicant’s claims under Article 41 were unsubstantiated and unreasonable. As to the non-pecuniary damage allegedly sustained by him, the Government noted that only two of his complaints had been declared admissible. Further, the applicant had not substantiated his claims in so far as they related to any “material loss” allegedly sustained by him.

81.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1.  Holds unanimously that there has been a violation of Article 3 of the Convention on account of conditions of the applicant’s detention;

2.  Holds by five votes to two that there has been no violation of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention on account of the failure of the court to call witnesses for the defence;

3.  Holds unanimously

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Lorenzen and Tsatsa-Nikolovska is annexed to this judgment.

While we agree with the majority that there has been a violation of Article 3 of the Convention, we are not able to find that there has been no violation of Article 6 § 3 (d) taken in conjunction with 6 § 1 of the Convention.

According to Article 6 § 3 (d) everyone has a right “... to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. It has been the Court’s constant case-law that this article does not grant an unlimited right to have witnesses heard and that it is primarily for national courts to assess whether witnesses requested by the defence to be heard are relevant to the case. Only in exceptional circumstances would a refusal to hear such witnesses violate Article 6, cf. paragraph 65 of the judgment. However, in our opinion the article implies that when a request by the defence to hear witnesses is not accepted, the national court should – unless the witnesses are clearly irrelevant – give a reasoned decision why it is not appropriate to call them.

In the present case the applicant at the investigation stage requested to hear two witnesses and gave reasons why he considered them important. However, the request only reached the trial judge after the case was found ready for trial – either because the prison authorities forwarded it belatedly or because of a clerical error in the District Court. The parties disagree as to what the applicant answered to a question of the trial court whether he wanted to call additional witnesses, but it appears from the transcript of the hearing on 28 October 1999 that the court knew about his earlier request and noted that it would be examined later, at the preliminary hearing stage. However, it does not appear that the District Court took any decision in that respect. Nor did the appeal court examine his complaint that his request was left unanswered by the District Court.

The majority considers that the applicant’s request was “clearly relevant” and that the silence of the national courts in that respect is “regrettable”. We can of course agree to that, but not to the majority’s approach that in such circumstances it is for the Court to assume the role of the national courts and assess what would have been the possible importance of statements from those witnesses had they been called. In our opinion the total failure of the national courts to examine and give a reasoned decision to a request to have relevant witnesses heard is not compatible with the requirements of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention. Accordingly there has been a violation of those articles.

The majority considers that the applicant’s request was “clearly relevant” and that the silence of the national courts in that respect is “regrettable”. We can of course agree to that, but not to the majority’s approach that in such circumstances it is for the Court to assume the role of the national courts and assess what would have been the possible importance of statements from those witnesses had they been called. In our opinion the total failure of the national courts to examine and give a reasoned decision to a request to have relevant witnesses heard is not compatible with the requirements of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention. Accordingly there has been a violation of those articles.


PROCEDURE

1.   The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 14 May 1987, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 10126/82) against  lodged with the Commission under Article 25 (art. 25) by an association called Plattform "Ärzte für das Leben" ("Doctors for the right to life" Campaign, "Plattform") on 13 September 1982.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to ’s declaration recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision from the Court as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 13 (art. 13) of the Convention.

2.   In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant association stated that it wished to take part in the proceedings pending before the Court and designated the lawyer who would represent it (Rule 30).

3.   The Chamber of seven judges to be constituted included ex officio Mr. F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 23 May 1987, in the presence of the Registrar, the President of the Court drew by lot the names of the other five members, namely Mr. J. Pinheiro Farinha, Mr. R. Macdonald, Mr. J. Gersing, Mr. A. Spielmann and Mr. A.M. Donner (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr. F. Gölcüklü and Mr. J.A. Carrillo Salcedo, substitute judges, replaced Mr. Donner and Mr. Gersing, who were unable to attend (Rules 22 § 1 and 24 § 1).

4.   On 20 June 1987, the President gave the applicant association’s counsel leave to use the German language (Rule 27 § 3).

5.   Having assumed the office of President of the Chamber (Rule 21 § 5) and, after consulting - through the Registrar - the Agent of the Austrian Government ("the Government"), the Delegate of the Commission and the lawyer for the applicant association, Mr. Ryssdal

(a) decided on 8 July 1987 that there was no need at that stage to arrange for written pleadings to be filed (Rule 37 § 1);

(b) directed on 3 November 1987 that the oral proceedings should commence on 21 March 1988 (Rule 38).

6.   On 16 September 1987, the Registrar received the applicant association’s claims under Article 50 (art. 50) of the Convention.

7.   The hearing was held in public in the Human Rights Building, , on the appointed day. The Court had held a preparatory meeting immediately beforehand.

There appeared before the Court:

- for the Government

- for the Commission

- for the applicant association

The Court heard addresses by Mr. Türk and Mr. Okresek for the Government, by Mr. Batliner for the Commission and by Mr. Adam for the applicant association, as well as their replies to its questions.

AS TO THE FACTS

8.   Plattform "Ärzte für das Leben" is an association of doctors who are campaigning against abortion and are seeking to bring about reform of the Austrian legislation on the matter. In 1980 and 1982 it held two demonstrations which were disrupted by counter-demonstrators despite the presence of a large contingent of police.

I.   THE DEMONSTRATION AT STADL-PAURA

A. Planning of the demonstration

9.   The applicant association decided to hold a religious service at  (Upper Austria) on 28 December 1980, after which there would be a march to the surgery of a doctor who carried out abortions. As required under section 2 of the Assembly Act of 1953 (see paragraph 40 of the Commission’s report), it gave notice, on 30 November, to the police authority for the district of Wels-Land. The police made no objection and gave the participants permission to use the public highway. The police did, however, have to ban two other planned demonstrations, which were announced subsequently by supporters of abortion, as these demonstrations were to be held at the same time and in the same place as the Plattform demonstration.

10.   As the organisers feared that incidents might occur nonetheless, they sought - shortly before the beginning of the march - to change their plans, in consultation with the local authorities. They gave up the idea of demonstrating outside the doctor’s surgery and decided instead to march to an altar erected on a hillside quite a distance away from the church and hold a religious ceremony there.

11.   The police representatives pointed out to them that the main body of the police officers had already been deployed along the route originally planned and that because of the lie of the land the new route was not suited to crowd control. They did not refuse to provide protection but stated that - irrespective of the route chosen or to be chosen - it would be impossible to prevent counter-demonstrators from throwing eggs and disrupting both the march and the religious service.

B. The incidents

12.   During the mass, a large number of counter-demonstrators - who, it seems, had not given the notice required under the Assembly Act - assembled outside the church and were not dispersed by the police. They disrupted the march to the hillside by mingling with the marchers and shouting down their recitation of the rosary. The same thing happened at the service celebrated in the open air: some five hundred people attempted to interrupt it using loudspeakers and threw eggs and clumps of grass at the congregation.

13.   At the end of the ceremony, when tempers had risen to the point where physical violence nearly broke out, special riot-control units - which had until then been standing by without intervening - formed a cordon between the opposing groups, and this enabled the procession to return to the church.

14.   In a letter to the Upper Austrian Safety Authority, the chairman of the association described the counter-demonstrators’ behaviour as "relatively peaceful": on other occasions, the opponents of Plattform had attacked the association’s members and had assaulted policemen.

C. Remedies pursued after the demonstration

1. Remedies sought by the association itself

(a) Disciplinary complaint

15.   On 21 January 1981, the applicant association lodged a disciplinary complaint (Dienstaufsichtsbeschwerde - see paragraphs 47-50 of the Commission’s report) alleging that the local police had failed to provide sufficient protection for the demonstration.

The Upper Austrian Safety Authority considered that the behaviour of the police had been irreproachable and it decided not to take any disciplinary measures against them. It referred to the difficulty of completely protecting an open-air demonstration from verbal abuse and from missiles which were not likely to cause the participants any physical harm. The Authority added that, in not intervening, the police had been prompted by the concern to avoid more serious trouble.

(b) Constitutional appeal

16.   Plattform subsequently lodged an appeal with the  (Verfassungsbeschwerde - see paragraphs 41-43 of the Commission’s report); in the association’s submission the local authorities’ failure to act had in the instant case allowed an infringement of the freedoms of assembly and religious observance, both of which were guaranteed by the Austrian Constitution.

On 11 December 1981, the  heard evidence from several witnesses with a view to establishing the facts sufficiently clearly. In a judgment on 1 March 1982, it held that it had no jurisdiction and consequently declared the appeal inadmissible. It noted that the applicant association’s complaint was clearly not directed against a "decision" or acts of direct administrative coercion within the meaning of Article 144 of the Constitution (see Official Collection of the Judgments of the , no. 9334/1982).

2. Proceedings taken officially

(a) Ordinary criminal proceedings

17.   Plattform did not take any ordinary criminal proceedings by lodging a complaint or by bringing a subsidiary private prosecution ("Subsidiaranklage" - see paragraphs 58-64 of the Commission’s report).

The Upper Austrian Safety Authority and the local police, however, opened investigation proceedings against a person or persons unknown for disruption of a meeting. For its part, a private organisation, the "Österreichische Bürgerinitiative zum Schutz der Menschenwürde", lodged a complaint against one of the counter-demonstrators, a member of parliament, alleging obstruction of a religious ceremony and incitement to hatred under Articles 188, 189 and 283 of the Criminal Code as well as an offence against section 2 of the 1953 Assembly Act. Complaints were also lodged against two other people.

The  public prosecutor discontinued the proceedings on 1 April 1981, however, under Article 90 of the Code of Criminal Procedure.

(b) Administrative criminal proceedings

18.   One person caught in the act of throwing eggs was fined 1,000 Austrian schillings under section IX of the law enacting the Administrative Proceedings Acts (see paragraph 66 of the Commission’s report).

II.   THE  DEMONSTRATION

19.   The competent police authority gave permission for a second demonstration against abortion to be held in the cathedral square in  on 1 May 1982. An anniversary meeting was due to be held in the square by the Socialist Party on the same day, but it had to be cancelled because notice of it had been given after the applicant association had given notice of its own meeting.

The demonstration began at 2.15 p.m. and ended with an hour of prayers inside the cathedral.

At about 1.30 p.m. some three hundred and fifty people angrily shouting their opposition had passed through the three archways which provide access to the square and gathered outside the cathedral. A hundred policemen formed a cordon around the Plattform demonstrators to protect them from direct attack. Other trouble was caused by sympathisers of an extreme right-wing party, the NDP, who voiced their support for Plattform. The police asked the association’s chairman to order these people to disperse, but without success.

In order to prevent the religious ceremony being disrupted, the police cleared the square.

20.   No proceedings were taken after these incidents, and in view of the ’s decision of 1 March 1982 the applicant association considered that a second appeal would have served no purpose.

PROCEEDINGS BEFORE THE COMMISSION

21.   The Plattform "Ärzte für das Leben" association applied to the Commission on 13 September 1982 (application no. 10126/82). It claimed that it had not had sufficient police protection during the demonstrations it had held on 28 December 1980 at Stadl-Paura and on 1 May 1982 at Salzburg; it submitted that there had been a violation of Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention. It also relied on Article 13 (art. 13), claiming that the Austrian legal system did not provide an "effective remedy before a national authority" to ensure the effective exercise of the rights in question.

22.   On 17 October 1985, the Commission declared inadmissible, as being manifestly ill-founded, the complaints under Articles 9, 10, and 11 (art. 9, art. 10, art. 11); on the other hand, it declared admissible the complaint under Article 13 (art. 13). In its report of 12 March 1987 (Article 31) (art. 31), it unanimously held that there had been no violation of this Article (art. 13).

The full text of the Commission’s opinion, together with a summary made by the Commission of the relevant domestic law and practice, is reproduced as an annex to this judgment.

FINAL SUBMISSIONS MADE TO THE COURT

23.   At the hearing on 21 March 1988, the Government requested the Court to hold that "the provisions of Article 13 (art. 13) of the European Convention on Human Rights [had] not been infringed and that the facts which gave rise to the dispute accordingly disclose[d] no violation of the Convention".

AS TO THE LAW

24.   The applicant association stated that no effective remedy was available to it in  for its complaint under Article 11 (art. 11); it relied on Article 13 (art. 13), which provides:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

25.   The Government’s main submission was that Article 13 (art. 13) applied only where a substantive provision of the Convention had been infringed. As evidence of this, they cited the French text, containing the words "ont été violés", which in their view were clearer than the corresponding English terms ("are violated").

The Court does not accept this submission. Under its case-law, Article 13 (art. 13) secures an effective remedy before a national "authority" to anyone claiming on arguable grounds to be the victim of a violation of his rights and freedoms as protected in the Convention; any other interpretation would render it meaningless (see, as the most recent authority, the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, § 52).

26.   Although it declared the complaint under Article 11 (art. 11) inadmissible as being manifestly ill-founded, the Commission considered it arguable for the purposes of Article 13 (art. 13). The Government thought it contradictory to declare one and the same complaint to be manifestly ill-founded under a substantive provision and yet arguable under Article 13 (art. 13).

27.   The Court does not propose to give an abstract definition of the notion of "arguability". In order to ascertain whether Article 13 (art. 13) was applicable in the instant case, it is sufficient that it should determine, in the light of the facts of the case and the nature of the legal issue or issues raised, whether the claim that the requirements of Article 11 (art. 11) had not been complied with was arguable notwithstanding that the Commission dismissed it as manifestly ill-founded. The latter’s decision on admissibility may provide the Court with useful pointers as to the arguability of the relevant claim (see the Boyle and Rice judgment previously cited, Series A no. 131, pp. 23-24, §§ 54-55).

28.   Before the Commission, Plattform complained that the Austrian authorities had disregarded the true meaning of freedom of assembly by having failed to take practical steps to ensure that its demonstrations passed off without any trouble.

29.   In the Government’s submission, Article 11 (art. 11) did not create any positive obligation to protect demonstrations. Freedom of peaceful assembly - enshrined in Article 12 of the Austrian Basic Law of 1867 - was mainly designed to protect the individual from direct interference by the State. Unlike some other provisions in the Convention and the Austrian Constitution, Article 11 (art. 11) did not apply to relations between individuals. At all events, the choice of the means to be used in a given situation was a matter for the State’s discretion.

30.   In its decision of 17 October 1985 on admissibility, the Commission dealt at length with the question whether Article 11 (art. 11) impliedly required the State to protect demonstrations from those wishing to interfere with or disrupt them. It answered this question in the affirmative.

31.   The Court does not have to develop a general theory of the positive obligations which may flow from the Convention, but before ruling on the arguability of the applicant association’s claim it has to give an interpretation of Article 11 (art. 11).

32.   A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.

Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 (art. 11). Like Article 8 (art. 8), Article 11 (art. 11) sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23).

33.   Concurring with the Government and the Commission, the Court finds that Austrian law is concerned to protect demonstrations by such positive action. For example, Articles 284 and 285 of the Criminal Code make it an offence for any person to disperse, prevent or disrupt a meeting that has not been prohibited, and sections 6, 13 and 14(2) of the Assembly Act, which empower the authorities in certain cases to prohibit, bring to an end or disperse by force an assembly, also apply to counter-demonstrations (see paragraphs 54 and 40 of the Commission’s report).

34.   While it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 33-34, § 67, and the Rees judgment of 17 October 1986, Series A no. 106, pp. 14-15, §§ 35-37). In this area the obligation they enter into under Article 11 (art. 11) of the Convention is an obligation as to measures to be taken and not as to results to be achieved.

35.   In the applicant association’s submission, the police remained entirely passive at each of the two demonstrations in issue. The Government and the Commission disagreed; in their view, immediate intervention was not justified in the absence of any serious assaults and would inevitably have provoked physical violence.

36.   The Court does not have to assess the expediency or effectiveness of the tactics adopted by the police on these occasions but only to determine whether there is an arguable claim that the appropriate authorities failed to take the necessary measures.

37.   As regards the incidents at Stadl-Paura on 28 December 1980 (see paragraphs 9-13 above), it must first be noted that the two demonstrations planned by supporters of abortion, which were due to be held at the same time and place as Plattform’s demonstration (of which notice had been given on 30 November) had been prohibited. Furthermore, a large number of uniformed and plain-clothes policemen had been deployed along the route originally planned, and the police representatives did not refuse the applicant association their protection even after it decided to change the route despite their objections. Lastly, no damage was done nor were there any serious clashes; the counter-demonstrators chanted slogans, waved banners and threw eggs or clumps of grass, which did not prevent the procession and the open-air religious service from proceeding to their conclusion; special riot-control units placed themselves between the opposing groups when tempers had risen to the point where violence threatened to break out.

38.   For the 1982 demonstration in Salzburg (see paragraph 19 above) the organisers had chosen the date of 1 May, the day of the traditional Socialist march which had to be cancelled - as regards the cathedral square - because the applicant association had given notice of its demonstration earlier. Furthermore, a hundred policemen were sent to the scene to separate the participants from their opponents and avert the danger of direct attacks; they cleared the square so as to prevent any disturbance of the religious service.

39.   It thus clearly appears that the Austrian authorities did not fail to take reasonable and appropriate measures.

No arguable claim that Article 11 (art. 11) was violated has thus been made out; Article 13 (art. 13) therefore does not apply in the instant case.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no violation of Article 13 (art. 13).

Done in English and in French, and delivered at a public hearing in the Human Rights Building, , on 21 June 1988.