The author of the communication is Aleksandr Golubev, a national of the Russian Federation born in 1970. He claims that the State Party has violated his rights under articles 7, 9 (1), (3) and (4) and 10 (1) of the Covenant. The Optional Protocol entered into force for the State Party on 1 January 1992. The author is not represented by counsel.
Facts as submitted by the author
The author submits that he was working as the deputy director of a private security firm when he was arrested on 24 August 2016 in his apartment and was taken to the Moscow branch of the Main Investigation Department of the Ministry of Internal Affairs. He was not allowed to call his family or his lawyer to inform them of his whereabouts. Before he was interrogated, he was provided with a State-appointed lawyer, who pressured him to confess to everything he was charged with, but the author refused. The author was then charged with large-scale extortion committed by an organized group.
On the same day, the author was confronted, in a face-to-face interview, with V.P., one of his co-workers at the private security firm, who testified that, in the winter of 2015, the author had shown V.P. a photograph of an unknown man and told him to lightly beat up the man when he was returning home from work. The author had allegedly threatened V.P. with termination of employment if V.P. did not obey his orders. V.P. testified that, the next day, he had gone to the address he had been given and waited for the man from the photograph. When V.P. saw the man returning home, he hit him once in the face and ran away.
On 26 August 2016, Tverskoy District Court authorized the author’s pretrial detention until 22 October 2016. The author and his lawyers objected to his detention because, except for the testimony of V.P., which the author rejected, there was no evidence connecting him to the alleged crime and there were no exceptional circumstances allowing for his detention, as required by law.3 The author asked the court to release him on bail or to place him under house arrest, since he had a permanent place of residence in Moscow and a family with three minor children. However, the court ruled that there was enough evidence connecting the author to the alleged crime and approved the investigator’s motion for the author’s pretrial detention.
- In accordance with article 97 of the Russian Code of Criminal Procedure, to hold someone in pretrial detention, the court needs to have enough grounds to believe that the suspect will flee the investigation, or may continue his/her criminal activities, or may threaten witnesses, destroy evidence, or in other ways hinder the criminal case. ↩
On 29 August 2016, the author lodged an appeal against his detention with Moscow City Court. On 14 September 2016, Moscow City Court confirmed the lower court’s decision and rejected the author’s appeal.
On 29 August 2016, one of the police officers who had taken part in the author’s arrest visited him in his cell and demanded that he confess to the charges and that he testify against other suspects in the case. If he did not, the police officer threatened to make the author’s conditions of detention so bad that it would cause harm to his health. The following day, the author reported this to the investigator; however, no action was taken.
On 19 November 2016, the author was transferred from pretrial detention facility No. 4 (SIZO No. 4) to SIZO No. 2, also known as Lefortovo Prison, where he describes the conditions of detention as inhuman and degrading. According to the author, he was transferred because he refused to confess to the charges and to cooperate with the investigation. He was held in a small cell with another detainee for 23 hours per day. The toilet was in the same room as the beds, had a faulty flushing system and was located opposite the cell door and in full view of the video camera, which meant that it could be watched by guards around the clock. This forced him to use the toilet as seldom as possible because he always felt like someone was watching him. There was no hot running water in the sink, and the temperature in the cell was very cold in winter. The sanitary conditions in the cell did not meet hygiene standards, and the prison administration did not allow inmates to receive any disinfecting or cleaning products sent from outside. There was not enough light in the cell to read or write, and it was very damp. The paint on the walls and the floor was flaking off and gave off a very distinct smell, which the author thinks was harmful to his health. There was no ventilation, and hot showers were allowed only once a week for 15 minutes. There was a chapel in the prison, but inmates were not allowed to go there.
The author complained about the conditions of detention every time he was brought before a judge for his detention to be extended or for an appeal hearing. Each hearing was also attended by a prosecutor; however, no response was given to the author’s complaints by either the judges or the prosecutors until 21 August 2017, when the judge of Moscow City Court, while extending the author’s detention for another 22 days, ruled that the author’s allegations about his conditions of detention could not be considered sufficient grounds to replace his pretrial detention with another measure, stating that the examination of the author’s allegations was beyond the scope of the court hearing.
On 19 October 2016, as requested by the investigator, Tverskoy District Court extended the author’s detention until 24 January 2017. On 26 October 2016, the author lodged an appeal against the District Court’s decision with Moscow City Court. On 23 November 2016, Moscow City Court upheld the decision of Tverskoy District Court. The author’s detention was extended by Tverskoy District Court again, on 23 January 2017 and 21 April 2017. The author lodged appeals against both extensions with Moscow City Court, to no avail.
On 26 April 2017, while he was being interrogated after charges had been brought against him, V.P. retracted the testimony that he had made against the author, thus eliminating the author’s only connection to the alleged victim. In his new testimony, V.P. said that he had been told by the police to provide false testimony against the author, which he had done, and that, in return, he would be released from detention. However, since he had also been placed in pretrial detention, he had decided to tell the truth. Despite the retraction of V.P.’s testimony, on 14 June 2017, Tverskoy District Court again extended the author’s pretrial detention until 24 August 2017. The author’s detention was extended by Moscow City Court two more times during the pretrial investigation, on 21 August 2017 and 13 September 2017, and twice by Nikulinsky District Court during the author’s trial, on 26 September 2017 and 12 February 2018. When extending the author’s detention, the courts used the same substantiation despite the change in V.P.’s testimony. In total, the author was held in pretrial detention for one year and 22 days.
On 26 March 2018, the Moscow City Prosecutor’s Office submitted a cassation appeal to Moscow City Court asking to quash the decision of Tverskoy District Court dated 14 June 2017 and that of Moscow City Court dated 21 August 2017, both of which had extended the period of the author’s and his co-defendants’ pretrial detention. The prosecutor’s office argued that both courts had been provided with incorrect information by the investigative authorities when rendering their decisions, such as incorrect initials for some of the defendants, incorrect licence plate numbers for the car used to commit the crime, the wrong date for the crime committed by one of the defendants and other descriptive errors. On 18 May 2018, the presidium of Moscow City Court granted the cassation appeal submitted by the Moscow City Prosecutor’s Office, quashed the two above-mentioned decisions and ordered both courts to hold new hearings.
At the time of the submission of his communication, the author was still in pretrial detention. The author submits that he has exhausted all available domestic remedies with regard to his claims.
Complaint
The author claims that his pretrial detention, which lasted for over a year, was arbitrary and unnecessary, in violation of his rights under article 9 (1), (3) and (4) of the Covenant. He submits that the only witness linking him to the crime later admitted that he had been coerced into providing false testimony, and that the investigation did not provide any evidence that he might flee, interfere with the investigation or commit an offence, as required by law. According to the author, the courts never seriously considered imposing a less restrictive preventive measure, such as bail, house arrest or a requirement not to leave the area, and paid no regard to the author’s individual circumstances.
The author also claims a violation by the State Party of articles 7 and 10 (1) of the Covenant owing to the degrading treatment he suffered while in detention in Lefortovo Prison. According to the author, he was subjected to unbearable conditions of detention only to make him confess to a crime that he had not committed.
State Party’s observations on admissibility and the merits
In a note verbale dated 2 October 2018, the State Party submitted its observations on the admissibility and merits of the communication.
The State Party submits that, on 26 December 2017, during the trial at Nikulinsky District Court, the author complained to the court that, during the pretrial investigation, several officers of the Ministry of Internal Affairs and the Federal Security Service threatened him with physical violence to make him confess to the charges. Three of the author’s codefendants made similar allegations. To investigate these allegations, Nikulinsky District Court obtained the relevant materials from the criminal case and transferred them to the Moscow branch of the Main Investigative Department of the Investigative Committee of the Russian Federation. On 7 February 2018, the Main Investigative Department issued a decision not to open a criminal case against the law enforcement officers owing to the absence of corpus delicti. In the same decision, it refused to charge the author and his co-defendants with filing a false complaint. The State Party notes that, in accordance with article 125 of the Code of Criminal Procedure, an appeal against an investigator’s decision not to open a criminal investigation may be lodged with a court; however, in his communication to the Committee, the author does not indicate whether he appealed the decision of 7 February 2018.
With regard to the author’s claims of inhuman and degrading conditions of detention, the State Party submits that, in accordance with article 1.2 of the Code of Administrative Judicial Procedure, the domestic courts are to resolve administrative cases, including those concerning actions or inactions of the State authorities. Also, article 151 of the Civil Code provides for the right to monetary compensation if persons suffer physical or mental harm to their personal non-property rights. The State Party notes that the author failed to submit a claim to the domestic courts in connection with the conditions of his pretrial detention.
The State Party notes that the availability of effective legal remedies is evidenced by the statistical data on complaints related to improper conditions of detention. For example, according to the Supreme Court, in 2017, a total of 3,912 such complaints were considered by domestic courts. Of those complaints, 1,898 were resolved in favour of the plaintiffs, and 75,901,437 roubles were awarded as monetary compensation. Accordingly, the State Party argues that the author’s claim related to his conditions of detention is inadmissible under article 2 of the Optional Protocol for failure to exhaust domestic remedies.
With regard to the author’s claims under article 9 of the Covenant, the State Party submits that, in accordance with article 401.1 of the Code of Criminal Procedure, an appeal may be lodged against a court decision that has entered into force with a regional court of cassation. Article 401.1 also provides for a further cassation appeal that may be lodged with the Supreme Court. The State Party notes that the author has not submitted cassation appeals to the presidium of Moscow City Court or the Supreme Court against the judicial decisions authorizing and extending his detention during the pretrial investigation. Therefore, the State Party argues that the author’s claims under article 9 of the Covenant are also inadmissible under article 2 of the Optional Protocol for failure to exhaust domestic remedies.
The State Party notes that the author was charged with committing large-scale extortion as part of an organized group of 15 individuals. On 26 August 2016, Tverskoy District Court authorized the author’s pretrial detention and later extended it in accordance with the established procedure. The State Party submits that the court authorized the author’s detention because he: (a) was suspected of committing a crime under the category of particularly serious crimes, for which the punishment would exceed three years in prison; (b) could have absconded from the investigation or trial, or otherwise interfered with the establishment of the truth in the case, including by influencing victims or witnesses; (c) could have covered up or destroyed evidence yet to be discovered; (d) could have communicated investigation-related information to accomplices who were yet to be identified by the investigation; or (e) could have continued to engage in criminal activity. The court also took into consideration the author’s age, marital status, health and other relevant factors.
The State Party submits that, upon admission to temporary detention facility No. 1 (IVS No. 1), the author underwent a medical examination that found no injuries on his body. While in detention, he repeatedly complained about insomnia and headaches and received care and treatment from the medical personnel. On 2 September 2016, the author was transferred to SIZO No. 4 and subsequently complained that he had been kept handcuffed in an overcrowded service vehicle for over 12 hours during the transfer. After receiving his complaint, the prosecutor’s office ordered the administration of IVS No.1 to conduct an internal investigation into the officers involved in the author’s transfer.
The State Party submits that, on 29 March 2018, the author was found guilty of extortion and sentenced to seven years and four months in prison. During the trial, the court discovered that, when Tverskoy District Court and Moscow City Court authorized the extensions of the author’s detention, on 14 June 2017 and 21 August 2017, respectively, they had not been provided with proper documents about the charges brought against the author, as the documents they had been provided with differed from those contained in the case file. On 18 May 2018, in response to the cassation appeal lodged by the Moscow City Deputy Prosecutor, the presidium of Moscow City Court quashed the decisions of Tverskoy District Court and Moscow City Court authorizing the extensions of the author’s pretrial detention, dated 14 June 2017 and 21 August 2017. However, the trial court, upon examining the abovementioned error, concluded that they did not affect the conviction of the author and his co-defendants. Thus, the State Party submits that there are no grounds to conclude that the author’s rights have been violated by the extensions of his detention during the pretrial investigation.
As to the conditions of the author’s detention in SIZO No. 4, the State Party notes that the domestic sanitary norms provide for 4 square metres per person in detention cells. While in SIZO No. 4, the author was detained in two different cells. Cell No. 515, in which the author was detained with two other individuals, had a total area of 15.07 square metres. Cell No. 904, in which the author was detained with seven other individuals, had a total area of 34.33 square metres. The State Party submits that both cells are equipped as per the regulations approved by the Ministry of Justice and that the toilet is walled off from the rest of the cell by partitions. In addition, every three months, or more frequently when required, all cells in SIZO No. 4 undergo deratization and disinsection. The State Party notes that the author has not submitted any complaints about his conditions of detention at SIZO No. 4.
Concerning the author’s detention in SIZO No. 2, also known as Lefortovo Prison, the State Party submits that the author was held in a two-person cell that met all standards and norms set out in domestic regulations. The author was provided with access to weekly showers, regular fresh linen and sanitation facilities, as well as daily walks for at least one hour. The State Party notes that cells in SIZO No. 2 are equipped with a forced ventilation system and the temperature and humidity meet State sanitary requirements. The lighting in the cells is provided by 100W lamps during the day and 60W lamps at night. In cells, the toilets are separated by 1-metre-high partitions, and measures have been taken to increase the height of the partitions to 1.4 metres. Inmates are provided with an immersion heater to heat water, and hot running water is available in some parts of the housing unit of the facility. According to the State Party, the author was allowed to freely send and receive mail, including letters, and to submit complaints to the European Court of Human Rights, the Federal Penitentiary Service and the SIZO No. 2 administration. The State Party notes that the author has not submitted any complaints to the prosecutor’s office concerning the conditions of his detention in SIZO No. 2.
Author’s comments on the State Party’s observations on admissibility and the merits
In a letter dated 10 October 2019, the author informed the Committee that he had no further comments on the State Party’s observations. He notes that his claims concerning the conditions of his detention are related only to his detention in Lefortovo Prison.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
In accordance with article 5 (2) (b) of the Optional Protocol, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes the State Party’s submission that, with regard to his claim under articles 7 and 10 (1) of the Covenant, the author has not exhausted all available domestic remedies. In particular, he did not appeal, under article 125 of the Code of Criminal Procedure, the investigator’s decision of 7 February 2018 not to open a criminal investigation into the author’s allegations that he was pressured by the police to confess to the crimes with which he had been charged. Moreover, he failed to submit a complaint to the prosecutor’s office or a claim to domestic courts in connection with the conditions of his pretrial detention in SIZO No. 2. The Committee also notes the author’s submission that he complained about the conditions of detention every time he was brought before a judge for an extension of his pretrial detention or for an appeal hearing, court sessions that were also attended by a prosecutor; however, neither the judges nor prosecutors responded to his complaints. The Committee recalls that authors are required to show “requisite diligence” in the pursuit of available remedies.4 An appeal under article 125 of the Code of Criminal Procedure or a claim to domestic courts in connection with the conditions of his pretrial detention would require the author to submit a formal complaint on his own behalf or through his lawyer. The Committee notes that there is nothing in the submission to suggest that the author was limited in contacting the outside world when he was detained in SIZO No. 2. Moreover, the Committee observes the State Party’s contention that, while detained in SIZO No. 2, the author was able to freely send and receive mail, including letters, and to submit complaints to the European Court of Human Rights, the Federal Penitentiary Service and the SIZO No. 2 administration. The Committee notes that the author has not contested this argument. In the absence of any other information or explanation on file, the Committee considers that the author has not exhausted all available domestic remedies concerning his claims under articles 7 and 10 (1) of the Covenant and finds them inadmissible in accordance with article 5 (2) (b) of the Optional Protocol.
- See, for example, D.B.-D. v. Zaire (CCPR/C/43/D/463/1991), para. 4.2; and Singh Bhullar v. Canada (CCPR/C/88/D/982/2001), para. 7.3. ↩
The Committee further notes the State Party’s submission that, with regard to his claims under article 9 of the Covenant, the author has not exhausted all available domestic remedies, as he failed to submit cassation appeals to the presidium of Moscow City Court or the Supreme Court against the judicial decisions authorizing and extending his detention during the pretrial investigation. The Committee also notes that the author did not provide comments on the State Party’s observations on admissibility. The Committee observes that the cassation review procedure set out in article 401.1 of the Code of Criminal Procedure concerns the review, on points of law only, of court decisions that have entered into force. The decision on whether to refer a case for a hearing before the cassation court is discretionary in nature and is made by a single judge, as set forth in article 401.10 of the same Code. The Committee has previously concluded that the cassation review contains elements of an extraordinary remedy.5 The State Party must therefore show that there is a reasonable prospect that such a procedure would provide an effective remedy in the circumstances of the case.6 In the absence of any information from the State Party on the effectiveness of the cassation review procedure in cases involving a review of judicial decisions authorizing and extending detention during the pretrial investigation, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the author’s claims under article 9 of the Covenant.
The Committee further notes the author’s claim under article 9 (4) of the Covenant. However, the Committee observes that the author’s arrest and detention, including the numerous extensions, were authorized and reviewed by domestic courts. In the absence of any further pertinent information on file, the Committee considers that the author has failed to sufficiently substantiate this claim for the purposes of admissibility. Accordingly, it declares this part of the communication inadmissible under article 2 of the Optional Protocol.
The Committee considers that the author has sufficiently substantiated his remaining claims under article 9 (1) and (3) of the Covenant for the purposes of admissibility. It therefore declares the communication admissible and proceeds with its consideration of the merits.
Considerations of the merits
The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
The Committee notes the author’s claim that his pretrial detention, which lasted for over a year, was arbitrary because there was no reasonable and justifiable explanation as to its lawfulness and necessity. The Committee also notes the State Party’s submission that the domestic courts initially authorized the author’s pretrial detention and later extended it, following the procedure established by law.
The Committee recalls, however, that under article 9 (1) of the Covenant, the notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and lack of due process of law, as well as elements of reasonableness, necessity and proportionality.7 Under article 9 (3) of the Covenant, it is not to be the general rule that persons awaiting trial are detained in custody. Pretrial detention should be the exception rather than the rule.8 Detention pending trial must also be lawful and based on an individualized determination that it is reasonable and necessary, taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. Pretrial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances. In addition, courts must examine whether alternatives to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention unnecessary in the particular case.9
The Committee notes the State Party’s submission that the domestic courts made their judgments about the legality of the author’s pretrial detention on the grounds that the author: (a) was suspected of committing a crime under the category of particularly serious crimes, for which the punishment would exceed three years in prison; (b) could have absconded from the investigation or trial, or otherwise interfered with the establishment of the truth in the case, including by influencing victims or witnesses; (c) could have covered up or destroyed evidence yet to be discovered; (d) could have communicated investigation-related information to accomplices who were yet to be identified by the investigation; or (e) could have continued to engage in criminal activity. The courts also took into consideration the author’s age, marital status, health and other relevant factors. However, the Committee notes that the case file does not include any specific information to support these assertions. In particular, it does not contain information suggesting that the author would have attempted to abscond, commit an offence or interfere with the investigation. Moreover, the Committee observes that the reasoning of the domestic courts in support of extending the author’s detention remained unchanged even after the courts had been informed, on 14 June 2017, that V.P. – who, as the author submitted, was the only witness linking him to the crime – had retracted his testimony against the author and admitted that he had been coerced by the police into giving false testimony. In the light of these facts, the Committee considers that the State Party has not demonstrated that the author’s detention meets the criteria of reasonableness and necessity. Furthermore, it does not appear from the case file that the courts considered less restrictive alternatives to the author’s pretrial detention. The Committee therefore concludes that there has been a violation of article 9 (1) and (3) of the Covenant.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of the author’s rights under article 9 (1) and (3) of the Covenant.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State Party is obligated to provide the author with adequate compensation for the violations that he has suffered. The State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.
Bearing in mind that, by becoming a party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the official language of the State Party.