Постановление Европейского суда по правам человека от 19.03.2009 «Дело Любименко (Lyubimenko) против России» [англ.]

Nos. 43, 50, 87, 91, 92 and 94 measured 9.8 sq. m and housed four to ten inmates. Cell No. 106 measured 8.2 sq. m and housed eight to nine inmates. Cells Nos. 26 and 87 measured 29.8 sq. m and housed from five to twenty-five inmates. Cell No. 121, where the applicant was held from 22 to 25 September 2006 and from 22 to 26 June 2007, measured 16.7 sq. m and housed two inmates, including the applicant. Cell No. 119 measured 7.8 sq. m and housed two to five inmates. Cell No. 51 measured 10.3 sq. m and housed six to nine inmates. Cell No. 25 measured 31.2 sq. metres and housed sixteen to twenty-five inmates. From 1 to 17 November 2007 the applicant was held alone in punishment cell No. 16.
39. Relying on certificates of 18 and 19 March 2008 from the facility administration, the Government further submitted that the applicant had at all times had a separate bunk and had been provided with bedding. The cells were naturally illuminated and ventilated through the windows and were also equipped with fans and fluorescent lamps which functioned during the day and at night. The average temperature inside was 18 to 20 °C in winter and 24 to 26 °C in summer. Inmates had an hour-long daily walk.
40. It follows from the same certificates that all cells were equipped with a lavatory bowl. This was separated from the living area by a brick partition of 1.5 in height. The dining table was situated at least two metres away from the toilet bowl. There were no insects or rodents in the detention facility, as all the cells were disinfected every month. The inmates were allowed to take a shower once a week and were provided at that time with clean bedding and towels. Finally, the Government submitted that inmates were provided with food three times a day. Boiled drinking water was distributed daily.
41. The applicant did not dispute the cell measurements or the number of inmates per cell. He stated, however, that there were not sufficient bunks for the inmates and that they had to take turns to sleep. He also disagreed with the Government's description of the sanitary conditions. The cells were smoky and noisy. The artificial light was never switched off, disturbing the applicant's sleep. There was no ventilation and it was extremely hot in summer. In winter it was very cold. There was no lavatory bowl; instead, there was a hole in the floor which inmates used to relieve themselves. The partition separating the toilet facilities from the living area did not offer sufficient privacy and the person using the toilet was in view of the other inmates and the wardens. The dining table was very close to the toilet. Only two persons could sit at it, and the other inmates ate sitting on the floor.

II. Relevant domestic law

42. "Preventive measures" or "measures of restraint" (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of the CCrP).
43. When deciding on a preventive measure, the competent authority is required to consider whether there are "sufficient grounds to believe" that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99).
44. Detention may be ordered by a court if the charge carries a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
45. After arrest the suspect is placed in custody "during the investigation". The period of detention during the investigation may be extended beyond six months o

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