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MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1419/H46-35 |
2 December 2021 |
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1419th meeting, 30 November – 2 December 2021 (DH) Human rights
H46-35 Svinarenko and Slyadnev group v. Russian Federation (Application Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1186, DH-DD(2020)565, CM/Del/Dec(2020)1383/H46-20 |
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Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
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23229/11 |
KARACHENTSEV |
17/04/2018 |
17/07/2018 |
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50992/16+ |
KULMINSKIY AND OTHERS |
04/10/2018 |
04/10/2018 |
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10597/13 |
26/03/2019 |
26/06/2019 |
Case description
In some of these cases the Court also found other violations: excessive length of criminal proceedings (Article 6 § 1); excessive length of pre-trial detention (Article 5 § 3); and failure to review appeals against the extension of detention orders by an appellate court (Article 5 § 4).[1]
Status of execution
The Committee last examined these cases at its 1383rd meeting (September 2020) (DH).[2]
Individual measures
As regards individual measures, the Committee noted with interest that the criminal proceedings have ended and that the applicants are thus no longer subjected to confinement in metal cages in courtrooms. It invited the authorities to submit the outstanding information on the applicant’s situation in the case of Valyuzhenich, as well as on the payment of just satisfaction once the applicants in the Kulminskiy and Others and Karachentsev cases provide their bank details.
In their action plan (DH-DD(2021)1186) submitted on 15 November 2021 and therefore too late for a detailed assessment, the authorities stated that the applicants in the Kulminskiy and Others and Karachentsev cases have not yet provided their bank details. They further noted that Mr Valyuzhenich has served his sentence and has been released.
General measures
As regards general measures, the Committee noted the developments concerning the draft amendments to the Code of Criminal Procedure (CCP) prohibiting the use of metal cages in courtrooms in criminal proceedings and underlined once again the importance of swiftly adopting these amendments. It therefore invited the authorities to complete the legislative process as soon as possible and to inform the Committee of the likely timeline.
The Deputies noted further with concern that the practice of placing defendants in metal cages continues, despite the Court’s judgments and the Committee’s call to immediately abandon this practice, thus giving rise to a large number of new repetitive applications before the Court. They exhorted, consequently, the authorities to take the necessary measures to end this practice immediately. They furthermore invited the authorities to take immediate measures to ensure that persons in detention are not placed in metal cages for their participation in hearings via video link.
Lastly, the Committee noted the information from the authorities about replacing metal cages with glass cabins in courtrooms, but emphasised once again the Court’s case-law in this respect under both Articles 3 and 6 of the Convention and strongly encouraged the authorities to ensure a limited recourse to confinement in glass cabins in full conformity with Convention requirements.
In their action plan (DH-DD(2021)1186), the authorities explained that the adoption of the draft amendments to the CCP had been delayed due to the recent elections in the State Duma and ensured that work on the draft legislation was currently in progress.
Communication by the Citizen’s Watch under Rule 9
On 27 October 2021, the NGO Citizen’s Watch submitted that neither the draft law No. 587542-7 amending Article 9 of the CCP nor the alternative draft law proposed by the Government of the Russian Federation prohibit the placement of detainees into metal cages within their holding facilities for the purpose of participating in hearings via video link. The NGO further submitted that no instructions to prohibit the use of metal cages appear to have been transmitted to the relevant bodies, as demonstrated by the practice of the domestic courts[3]. Furthermore, the use of glass cabins is not always in conformity with the Convention standards (the detainees placed in such cabins being often subjected to conditions of insufficient ventilation, overcrowding etc.).
Analysis by the Secretariat
Individual measures
General measures
It is regrettable that more than seven years after the leading judgment of the group became final, and while more than 1,300 new repetitive applications are currently pending before the European Court, no tangible progress has been achieved in the legislative process for amending Article 9 of the CCP.
In view of the dimensions of the problem at domestic level and of the magnitude of the burden placed on the European Court’s docket as a consequence, the completion of the legislative process with a Convention-compliant end-result has become a matter of utmost urgency.
At the same time, it transpires from the NGO’s submissions that, despite the Committee’s repeated calls to immediately abandon the practice of placing defendants in metal cages, the domestic authorities continue having recourse thereto and the domestic courts continue failing to acknowledge the non-compatibility of this practice with the Convention standards.
From the information available, it is not clear whether this situation results from the absence of guidelines/instructions towards the relevant bodies or from the inadequate raising of awareness of the judiciary on the European Court’s case-law, or both. Be that as it may, it remains a matter of grave concern that a practice long since found to violate the Convention persists in anticipation of the completion of the legislative process, thus giving rise to hundreds of new repetitive applications every year.[4] Furthermore, no information has been provided on the measures taken or envisaged to ensure that persons held in detention are not placed in metal cages for their participation in hearings via video link.
Concerning the content of the envisaged reforms, fundamental questions remain open as regards both the annulment/abolition of the legislation permitting the use of metal cages in court rooms and the express prohibition of their use within the holding facilities for the purpose of the detained defendants’ participation in hearings via video link.
In respect of the use of metal cages in court rooms, it is reiterated that the original draft law prohibiting the use of any protective cabins in courtrooms would have addressed directly and definitively the origin of the violations in these cases. According to the last information submitted by the authorities to the Committee in June 2020, this appeared to have been replaced by the alternative of allowing the use of a glass cabin instead if authorised by a judge upon a reasoned request.
Given the Court’s various findings already identifying a number of problems linked to the use of glass cabins in court rooms,[5] as well as continuous reported instances in that regard, the authorities should be urged to provide information on the measures aimed at ensuring a limited recourse to placement in glass cabins, as well as on the conformity thereof with the Court’s case-law under both Articles 3 and 6.
In respect of the use of metal cages in the holding facilities during hearings via video link, it is noted that placing detained defendants in metal cages for their remote participation in hearings does not appear to be justifiable on security grounds given that they are already subject to high security measures and in no physical contact or proximity with the judges and the public. The Committee might wish to invite the authorities to consider including in the legislation under consideration an explicit prohibition of placing detainees into metal cages within their holding facilities for the purpose of participating in hearings via video link.
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Financing assured: YES |
[1]. The general measures required in response to all these violations are examined by the Committee of Ministers in the context of other groups of cases: Smirnova and Klyakhin.
[2]. For the Committee’s previous decisions in respect of this group, see CM/Del/Dec(2019)1348/H46-26; for information provided by the authorities ahead of the Committee’s 1348th meeting (June 2019) (DH), see their action plans of 27 March 2015
(DH-DD(2015)359) and 12 April 2019 (DH-DD(2019)441.
[3] The examples provided by the NGO demonstrate that the domestic courts continue upholding the practice of placing detained defendants in metal cages, either by erroneously interpreting the European Court’s findings or by relying on the fact that the domestic law has not yet been amended, thus still not providing for an absolute ban of metal cages. In particular:
- the Supreme Court of Komi held that, the mere fact that the applicant was placed in a cage in the courtroom, does not in itself indicate that he was subjected to ill-treatment (appeal judgment of 16 July 2020);
- the Supreme Court of Komi and the Vologodskiy Regional Court held that the use of metal cages in the court rooms is set forth in the regulations currently in force and the appellant did not provide evidence that his treatment attained a minimum level of severity to fall within the scope of Article 3 (appeal judgments of 16 July 2020 and 18 June 2020);
- the Saint-Petersburg City Court held that the legislation concerning the use of metal cages in the court rooms has not been amended (appeal judgments of 1/12/2020 and 14/10/2020);
- the Nenetskiy Regional Court held that the defendant’s placement in a metal cage was unlawful, but only because he was charged with an administrative offence, whereas the legislation currently in force allows the use of metal cages in criminal cases only (appeal judgment of 26/01/2021).
[4] In 2021 alone, the Court received more than 280 new complaints concerning metal cages and glass cabins.
[5] Including as regards confinement in circumstances which, taken as a whole, caused the applicants distress or hardship of intensity exceeding the unavoidable level of suffering inherent in detention under Article 3 (see, e.g. Yaroslav Belousov, No. 2653/13, § 125); and as regards fair trial requirements enshrined in Article 6 of the Convention (see notably Yaroslav Belousov, No. 2653/13, §§ 149 – 150, in which the Court considered that a measure of confinement in the courtroom may affect the fairness of a hearing guaranteed by Article 6. It may in particular have an impact on the exercise of an accused’s rights to participate effectively in the proceedings and to receive practical and effective legal assistance. The Court also stressed that an accused’s right to communicate with his lawyer without the risk of being overheard by a third party is one of the basic requirements of a fair trial in a democratic society, and that otherwise legal assistance would lose much of its usefulness. Further, given the importance attached to the rights of the defence, any measures restricting the defendant’s participation in the proceedings or imposing limitations on his or her relations with lawyers should only be imposed in so far as is necessary, and should be proportionate to the risks in a specific case).