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ROZHKOV v. RUSSIA - 64140/00 [2007] ECHR 627 (19 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/627.html
Cite as:
[2007] ECHR 627
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FIFTH
SECTION
CASE OF
ROZHKOV v. RUSSIA
(Application
no. 64140/00)
JUDGMENT
STRASBOURG
19 July 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision
In the case of Rozhkov v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mrs M.
Tsatsa-Nikolovska,
Mr A. Kovler,
Mr J. Borrego
Borrego,
Mr M. Villiger, judges,
and Mrs F.
Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 64140/00) against the Russian
Federation 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 Yevgeniy Ivanovich
Rozhkov (“the applicant”), on 30 October 2000.
The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mrs V. Milinchuk.
The
applicant alleged, in particular, that he had been denied adequate
medical assistance in pre-trial detention centre IZ-26/1 and that his
appeal of 25 April 2000 had been examined with a delay of more than
one month. He relied on Articles 3 and 5 § 4 of the Convention
respectively.
By
a decision of 5 February 2007 the Court declared the application
partly admissible.
The
applicant and the Government each filed further written observations
(Rule 59 § 1), the Court having 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
The applicant was born in 1966 and lives in Belgorod.
A. Criminal proceedings against the applicant
The
applicant is a former employee of the Belgorod Customs Office
(Белгородская
таможня),
where he occupied the post of Deputy Head of the Investigations
Department (заместитель
начальника
отдела
дознания).
On
28 October 1999 the applicant was arrested and detained. Some time
thereafter the investigating authority instituted criminal
proceedings against him on suspicion of bribery, under the number
999161.
On
14 July 2000 the Belgorod Regional Court found the applicant guilty
as charged and sentenced him to four years' imprisonment.
On 30 January 2001 the Supreme Court of Russia examined and dismissed
the applicant's appeal against the judgment of 14 July 2000.
B. The
applicant's detention on remand
The
applicant was taken into custody on 28 October 1999.
1. The applicant's detention pending investigation
(a) Detention order of 31 October 1999 and
related proceedings
On
31 October 1999 the Belgorod Transport Prosecutor (Белгородский
транспортный
прокурор)
authorised the applicant's detention on remand.
The
applicant contested the lawfulness of his detention on remand before
the courts on 11 November 1999.
By
decision of 23 November 1999 the Oktyabrskiy District Court of
Belgorod (Октябрьский
районный
суд г.
Белгорода)
found the applicant's detention on remand to be lawful.
On
29 November 1999 the applicant lodged an appeal against this
decision.
On
29 December 1999 the Belgorod Regional Court (Белгородский
областной
суд) dismissed the
applicant's appeal.
(b) Detention order of 24 December 1999
and related proceedings
On
24 December 1999 the Belgorod Transport Prosecutor and the
South-Eastern Transport Prosecutor authorised the extension of the
investigation and of the applicant's detention on remand for one
month until 28 January 2000.
On
30 December 1999 the applicant contested the lawfulness of the
extension of his detention on remand before the courts.
On
20 January 2000 the Western District Court of Belgorod (Федеральный
суд Западного
округа
г. Белгорода)
upheld the extension of the applicant's detention on remand.
On
27 January 2000 the applicant and his defence counsel lodged an
appeal against this decision, raising the same arguments.
On
1 March 2000 the Belgorod Regional Court dismissed the appeal of the
applicant and his defence counsel as groundless and upheld the order
of 24 December 1999 and the decision of 20 January 2000.
(c) Detention order of 24 January 2000 and
related proceedings
By
order of 24 January 2000 the Belgorod Transport Prosecutor and the
South-Eastern Transport Prosecutor authorised the extension of the
applicant's detention on remand for a further month until 28 February
2000.
On
8 February 2000 the applicant complained of the unlawfulness of the
extension of his detention on remand before the courts.
On
18 February 2000 the Western District Court of Belgorod confirmed the
extension of the applicant's detention on remand.
This
decision was upheld on appeal by the Regional Court on 29 March
2000.
(d) Detention order of 28 February 2000
and related proceedings
On
28 February 2000 the Belgorod Transport Prosecutor and the
South-Eastern Transport Prosecutor extended the applicant's detention
until 28 March 2000.
The
applicant contested the decision in court.
On
31 March 2000 the Western District Court of Belgorod rejected this
appeal.
The
applicant, with the assistance of his defence counsel, appealed
against these decisions.
On
26 April 2000 the Belgorod Regional Court, ruling in final instance,
dismissed the appeals of the applicant and his defence counsel and
upheld the previous decisions.
(e) Detention order of 21 March 2000 and
related proceedings
By order of 21 March 2000 the Belgorod Transport
Prosecutor and the South-Eastern Transport Prosecutor authorised the
extension of the applicant's detention on remand for a further month,
until 28 April 2000.
On
31 March 2000 the applicant contested the lawfulness of the extension
of his detention on remand before the courts.
On
10 April 2000, having heard the applicant and his counsel, the
Western District Court of Belgorod rejected their arguments.
The
order of 21 March and the decision of 10 April 2000 were upheld on
appeal by the Regional Court on 10 May 2000.
(f) Detention order of 21 April 2000 and
the applicant's related complaint
On
21 April 2000 a deputy Prosecutor General of the Russian Federation
(заместитель
Генерального
прокурора
РФ) authorised the
extension of the investigation and of the applicant's detention on
remand until 28 May 2000.
On
25 April 2000 the applicant contested the lawfulness of the extension
of his detention on remand before the courts and requested his
release.
This
complaint reached the District Court on 26 April 2000.
On
25 May 2000 the South-Eastern Transport Prosecutor approved the bill
of indictment, and the case was sent to the Belgorod Regional Court
for trial.
2. Detention during the judicial proceedings
(a) Decision of 26 May 2000 and the
applicant's related complaints
On
26 May 2000 the Western District Court of Belgorod rejected the
applicant's application for release made on 25 April 2000. In doing
so, the court stated that the applicant was charged with an offence
for which he could be detained on the sole ground of the danger it
represented.
The
court also added that relevant reasons and motives had been set out
in the investigating authority's order of 21 April 2000, which had
been authorised by the prosecutor.
On
31 May 2000 the applicant lodged an appeal against this decision with
the Regional Court.
This
appeal reached the Regional Court on 2 June 2000. According to the
Government, it was joined to the applicant's case file and examined
by the Regional Court on 20 June 2000 (see below).
Throughout
the period between 2000 and 2003 the applicant complained to various
public authorities about the fact that no decision had been taken on
his appeal lodged on 31 May 2000.
By
letter of 7 July 2003 the President of the Belgorod Regional Court
informed the applicant that:
“Your statement that the appeal lodged against the
decision of the Oktyabrskiy District Court of Belgorod of 26 May 2000
was left without consideration is unconvincing. By the time the court
received this appeal, on 2 June 2000, the criminal case against you
had already been forwarded to the Regional Court and was no longer
being processed by the investigating authority and the prosecutor
whose decisions on detention you were contesting.
Taking this into account, your appeal was included in
the case file ... as the arguments raised in it could be examined
only when [the first] court hearing was being scheduled. Having
decided to schedule a hearing and not to change the preventive
measure imposed on you, the judge accordingly found your pre-trial
detention to be lawful.”
(b) Decision of 20 June 2000 and the
applicant's related complaints
On
30 May 2000, following transmission of the case to the court, the
applicant lodged a motion with the Regional Court requesting that he
be released because of his glaucoma.
On
20 June 2000 the Belgorod Regional Court dismissed the applicant's
motion and scheduled a hearing for 26 June 2000. In refusing to
release the applicant, the court examined the lawfulness of the
applicant's ongoing detention on remand. In particular, it found that
the preventive measure in the form of detention had been imposed in
accordance with the type and degree of danger to society of the
offences with which the applicant was charged and that no substantial
violations of the requirements of domestic law had occurred. It then
decided to reject his request for release as groundless.
On
21 June 2000 the applicant lodged an appeal against this decision,
arguing for his release and raising a number of other arguments.
On
13 September 2000 the Supreme Court of Russia, presided by judge G.,
dismissed the applicant's appeal against the decision of 20 June
2000, finding this decision to be lawful and well-founded.
(c) The applicant's release from custody
On
6 September 2002 the applicant was released on parole.
C. Conditions of detention in pre-trial detention
centre IZ-26/1
1. Background information on the applicant's state of
health
Prior
to the institution of criminal proceedings on 28 October 1999, the
applicant had twice suffered concussion for which he had received
inpatient treatment in 1994 and 1997.
On
23 June 1999 the applicant was diagnosed by an oculist with
“incipient retinal angiopathy and essential hypertension of the
right eye”. The oculist prescribed some eye drops and advised
the applicant to undergo regular medical observation.
It
appears that the applicant underwent observation by an
ophthalmologist, in the course of which the above diagnosis was
confirmed, including a suspicion of glaucoma. He was advised to use
the appropriate eye drops twice a day on an ongoing basis and to
undergo surgery to the right eye.
2. The applicant's arrest on 28 October 1999 and
subsequent medical examinations
On
28 October 1999, at 10.10 p.m., the applicant was arrested in the
entrance hall to his apartment building by officers of the Belgorod
Regional Department for Combating Organised Crime (hereafter “the
DFOC”, Управление
по борьбе
с организованной
преступностью
при УВД
Белгородской
области),
when he was allegedly taking a bribe.
The
policemen, faced with resistance from the applicant, applied physical
force to lay him down on the floor and then tied his hands with
handcuffs.
On
29 October 1999, at 4.05 p.m., the applicant was examined in the
police station by a forensic medical expert from the Belgorod
Regional Department of Forensic Medicine (Областное
бюро
судмедэкспертизы
г. Белгорода)
after he complained of dizziness and a slight feeling of nausea. The
expert's report contained the following conclusions:
“There is hyperaemia of the skin, measuring 11 x
0.5 cm, on the rear of the right forearm in the area of the
radiocarpal joint, between the interior and the exterior condyles. A
similar one, measuring 3 x 0.4 cm, is evident in the area of the
left radiocarpal joint next to the exterior condyle, and on the left
side of the forehead (1 x 0.2 cm). There is a 2 x 1 cm abrasion
on the front side of the left knee joint, covered by a dry red smooth
surface at skin level. A similar abrasion of 0.3 x 0.3 cm is evident
on the palmar surface of the lower part of the right forearm,
surrounded by a 0.5 cm hyperaemia. A similar hyperaemia of soft
tissue measuring 0.4 x 0.2 cm can be seen on the lateral surface of
the proximal phalanx of the middle finger of the right hand. No other
injuries have been detected.
... [the above injuries] may have been caused on 28
October 1999 by hard, blunt objects which had a surface liable to
cause moderate trauma and did not cause damage to health.”
The
report did not mention any sign of, or complaint concerning,
concussion.
3. Alleged lack of adequate medical assistance
On
5 November 1999 the applicant was placed in pre-trial detention
centre IZ-26/1.
On
11 November 1999 the applicant applied in writing to the head of the
detention centre. He submitted that he had suffered concussion as a
result of hitting his head against a concrete floor in the course of
his arrest. He further submitted that he had been treated twice
previously for concussion and was now experiencing the same symptoms:
dizziness, lack of appetite, nausea, asthenia and a severe headache.
On
15 November 1999, at the request of his relatives, the applicant was
examined by an outside neurologist. The doctor, having heard the
applicant's description of his symptoms, diagnosed him with the
“after-effects of closed craniocerebral injuries”. He was
prescribed injections of aminophylline, pyracetam and vitamin B6, and
nootropil and vinpocetine in pill form. The applicant submitted that
these drugs had been given to him by his wife, as they were not
available in the detention centre.
On
23 November 1999 the applicant applied to the Belgorod Transport
Prosecutor, requesting a meeting with his wife to receive a delivery
of medicines. He said that no medical assistance was being provided
to him by the detention centre and that the supply of medicines there
was inadequate.
According
to the information submitted by the Government, between 15 November
and 13 December 1999 the applicant underwent inpatient treatment in
the medical unit of IZ-26/1. The applicant was discharged in a
satisfactory condition.
On
1 and 14 December 1999 the applicant applied to the head of the
detention centre stating that, despite the medication delivered to
him by his wife, his health had deteriorated significantly; he was
suffering from severe asthenia, his memory had deteriorated and he
could not think clearly. He requested that measures, which he
apparently did not specify, be taken.
On
22 December 1999 the applicant was again examined by an outside
neurologist whose report, prepared two days later, contained the
following conclusions:
“[The applicant] has [previously] been examined by
a neurologist and diagnosed with the after-effects of repeated closed
craniocerebral injuries. He has received a full course of therapy. On
22 December 1999 [the applicant] was again examined by a neurologist
and diagnosed with the after-effects of closed craniocerebral
injuries coupled with asthenovegetative syndrome and disseminated
neurological symptomatology. Treatment has been prescribed and a
visit by an oculist recommended. Currently I find [the applicant's]
general state of health to be satisfactory. He is receiving treatment
and is under constant medical observation.”
The
extracts from the applicant's prison medical file submitted by the
Government show that the entry in the file dated 22 December
1999 stated that the applicant's state of health had improved
considerably following the course of medication. The doctor had
prescribed a ten-day course of treatment.
On
2 February 2000 the applicant again applied to the head of the
detention centre. He submitted that, despite the course of treatment
prescribed by the neurologist for his concussion, he was not getting
better and was still feeling very unwell. Moreover, he had started
suffering from unbearable pain in his eyes. He requested that he be
examined by a neurologist and an oculist.
On
15 March 2000 the applicant was examined in the pre-trial detention
centre by an oculist invited at his wife's expense from a local
clinic. The oculist's report contained the following conclusions:
“... [the applicant] has medium-degree myopia,
retinal angiopathy and secondary glaucoma (essential hypertension).
Recommendations: (a) insertion of [eye drops], in a dose
of 0.25%, into the right eye before going to bed and into the left
eye twice a day; (b) an inpatient examination using special
equipment; (c) surgical treatment in order to retain optic functions,
as glaucoma causes atrophy of the optic nerves which leads to loss of
eyesight to the point of blindness. The post-surgery period must
include two to three weeks in a hospital, followed by medical
observation for one to one and a half months. It is desirable to wait
six months before operating on the second eye; (d) regular check-ups
by an oculist not less than once every three months.”
According
to the applicant, the oculist did not prescribe any specific
treatment against the pain in his eyes as this could be relieved only
by means of surgery; he also warned the applicant that a delay in
undergoing surgery might lead to blindness. The applicant also
submitted that, according to the measurements carried out by the
doctor, his intraocular pressure was 27 and 34 mmHg respectively. The
applicant argued that the manifestly high pressure of 34 mmHg in one
of his eyes provided proof of his medical condition.
On
16 March 2000 the applicant complained to the head of the Department
for the Execution of Sentences of the Ministry of Justice (начальник
Управления
исполнения
наказаний
МЮ РФ
по Белгородской
области)
and the head of the detention centre that the authorities of the
detention facility were not providing any surgical treatment for his
glaucoma.
On
17 March 2000 the head of the medical unit of the detention facility,
upon an enquiry by the applicant's counsel, provided a medical
certificate which indicated that the applicant was undergoing regular
check ups in the medical unit in connection with his head
trauma. It further repeated the recent findings of the oculist,
stating that the applicant was suffering from first-degree retinal
angiopathy and glaucoma of both eyes, and needed surgical treatment
in order to retain his eyesight. It was noted that the applicant was
currently undergoing conservative therapy.
On
15 and 17 March 2000 the applicant allegedly discussed his state of
health with the head of the medical unit, who told him that medical
assistance was provided only to those patients who were in extreme
need; the applicant did not fall into that category. He further said
that he was not able to relieve the applicant's eye pain, call an
oculist or perform surgery in the detention facility. He had the
authority to transfer the applicant for surgery to the hospital for
detainees in Voronezh, but only after the judgment against the
applicant had become final. The applicant could not be transferred
before then, as there was no instruction to that effect from the
prosecutor or the court.
On
27 and 28 March 2000 the applicant repeated his complaints of 16
March 2000, indicating that, despite the diagnosis of glaucoma
recently confirmed by the oculist, he had received no treatment for
this illness. He further indicated that his complaints about the
unbearable pain in his eyes, from which he had been suffering for the
past months, were being ignored, and requested that surgery, to which
he did not object, be performed. These complaints apparently led to
another discussion with the head of the medical unit, who again
refused to arrange for surgery.
On
28 March 2000 the applicant embarked on a hunger strike in protest
against, inter alia, the lack of medical assistance. He was
placed in solitary confinement where he stayed for 14 days, refusing
to eat.
The
applicant's prison medical file shows an entry dated 31 March 2000
according to which the applicant was examined by the doctor in
connection with his hunger strike. The conclusion was that the
applicant's general condition was satisfactory, he was fully
conscious and his hemodynamic indices were within the normal limits.
On 12 April 2000 the applicant was taken, on the
orders of the investigating authority, for a medical examination by a
psychiatrist, a neurologist and an oculist in Polyclinic No. 1 in
Belgorod. The applicant alleged that the oculist diagnosed him with
“atrophy of the optic nerves of both eyes”, which could
progressively deteriorate and result in blindness. There is, however,
no documentary proof of such a conclusion.
The
applicant submitted that from April to 16 December 2000 (the date
when he was transferred to another pre-trial detention centre), the
head of the medical unit of detention centre IZ-26/1 had not been
following the recommendation of the oculist made on 14 March 2000 to
have the applicant examined at least once every three months, had not
provided any treatment, had not taken any measures to relieve the
applicant's eye pain and had not ordered surgery. The necessary
medication was provided for the applicant by his wife.
An
entry of 16 May 2001 in the applicant's medical file states that the
applicant was examined by the doctor, who performed some tests and
authorised his transportation.
Following
his conviction, the applicant was transferred on 7 June 2001 to the
transit area of penitentiary facility ZhKh-385/18 in the Republic of
Mordoviya. It appears that after his transfer to a correctional
facility the applicant was exempt from work on health grounds.
On
that date the prison doctor examined him and concluded that the
applicant was complaining of pain in his eyes. On completion of the
tests, the doctor decided that the applicant's heart, lungs, urine
and blood tests were all normal.
The
applicant was subsequently transported to facility ZhKh-385/5,
arriving there on 8 June 2001. During the examination upon arrival
the doctor diagnosed the applicant with glaucoma of both eyes and
recommended that he see an oculist and a neuropathologist.
On
10 August 2001 the applicant applied to the medical unit of facility
IK-5 and complained about the pain in his eyes. He was diagnosed as
having glaucoma of both eyes and was prescribed a course of
treatment. The applicant was also relieved from work assignments
between 10 and 14 August 2001.
On
18 September 2001 the applicant was transferred to prison hospital
LPU-21 for inpatient treatment in the surgical department in
connection with, among other things, the “secondary glaucoma”'
He remained there, apparently with interruptions, until at least
2 March 2002.
On
22 September 2001 the oculist diagnosed the applicant with
“medium-degree myopia of both eyes ... [it is] recommended
[among other things that steps be taken] to control [the patient's]
intraocular pressure”.
On
24 September 2001 the applicant was admitted for inpatient treatment
in the surgical department of the prison hospital with the following
diagnosis: “Medium-degree myopia. Suspicion of glaucoma”.
It
appears from the case file that the applicant requested the doctors
not to administer any treatment until he had seen his family.
Apparently, the applicant did not stay long in hospital.
On
9 October 2001 the applicant was again admitted for inpatient
treatment in the prison hospital. Having thoroughly examined the
applicant and performed various tests, the doctors diagnosed the
applicant with “medium-degree myopia – progressing”.
The diagnosis did not mention any sign of glaucoma.
On
6 September 2002 the applicant was released.
Medical
examinations dated 8 September 2003 and 27 July and 9 December
2004 established that the applicant was suffering, among other
things, from glaucoma.
This
diagnosis was confirmed by medical examinations of 24 December
2004 and 28 July, 10 and 28 November and 26 December 2006. The last
examination recommended that the applicant undergo a special
medico-social examination for recognition of disability status and
determination of his disability group.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution
Article
21 of the Constitution provides that no one may be subjected to
torture, violence or any other cruel or degrading treatment or
punishment.
B. 1995
Law on the
conditions of
detention of
suspects and
defendants (закон
«О содержании
под стражей
подозреваемых
и обвиняемых
в совершении
преступлений»)
Inmates
are entitled to medical assistance (section 17). If the health of an
inmate deteriorates, he must immediately undergo medical examination
by the medical employee of the detention facility.
If
an inmate is suffering from a serious illness, the authorities of the
detention facility must immediately inform the prosecutor, who may
carry out an inquiry into the matter (section 24).
C. Decree of the Ministry of Justice of 12 May 2000 on
the internal regulations governing pre-trial detention centres
(Приказ
Минюста
РФ от
12 мая 2000 г.
N. 148 «Об утверждении
Правил
внутреннего
распорядка
следственных
изоляторов
уголовно-исполнительной
системы
Министерства
юстиции
Российской
Федерации»)
Inmates
should apply for medical assistance to a medical employee of the
detention centre during his or her daily rounds and, in the case of a
serious illness, to any employee of the detention centre.
The
employee contacted by the inmate is obliged to take measures to
provide medical assistance (paragraph 131). Outpatient care is
provided to inmates in their cells and on the specialised premises of
the medical unit of a detention centre. Medication is provided
individually in the doses and quantities recommended by a doctor, in
accordance with the relevant information in the patient's medical
records (paragraph 132).
The
medical unit of the detention centre should have an inpatient
department. If inmates are in need of urgent or specialised medical
assistance which cannot be provided in a detention centre, they
should be transferred for inpatient treatment to a penitentiary
institution or, if necessary, to a public health institution in
accordance with the prescribed procedure (paragraph 133).
D. Criminal Procedure Code of 1961
1. Detention pending investigation
According
to the Code in force at the relevant time, in making the decision on
detention, the prosecutor had to consider whether there were
“sufficient grounds to believe” that the accused would
evade investigation or trial, obstruct the establishment of the truth
or reoffend (section 89). The decision also had to take into account
the seriousness of the charge, information on the personality of the
accused, his profession, age, state of health, family status and
other circumstances (section 91). A prosecutor's decision ordering
detention on remand had to be reasoned and justified. The accused had
to be informed of the detention decision and have explained to him
the procedure for lodging an appeal against it (section 92). Persons
charged with an offence contemplated by, inter alia, section
290 of the Criminal Code could be detained on remand on the sole
ground of the dangerousness of the offence (section 96).
The
maximum permitted period of detention pending investigation was two
months, which could be extended up to three months and later up to
six months if it was impossible to complete the investigation earlier
and in the absence of grounds for release. In exceptional
circumstances, the period of detention pending investigation could be
extended beyond the six month limit, but could not exceed
eighteen months (section 97). A preventive measure had to be
cancelled by a reasoned decision of the investigating authority or
the prosecutor when it ceased to be necessary, or be replaced by a
more stringent or milder preventive measure if the circumstances of
the case so required (section 101).
2. Proceedings to examine the lawfulness of detention
pending investigation
The
detainee or his counsel or representative could challenge the
decision imposing or extending a term of detention pending
investigation before the courts (section 220.1). The judge was
required to review the lawfulness and justification of the decision
no later than three days from receipt of the relevant materials. The
judge could either dismiss the challenge or revoke the detention
order and order the detainee's release. Reasons had to be given for
the judge's decision (section 220.2).
3. Detention during the judicial proceedings
After the investigation had been completed, the
prosecutor had to approve the bill of indictment and forward the case
to the court within five days. Thereafter, all complaints and
requests were to be forwarded directly to the court (sections 214 and
217). In ordering, extending or revoking the period of detention on
remand during the judicial proceedings, the courts were also guided
by the above-mentioned sections 89, 91, 92, 96 and 101. When setting
the date of the first hearing, the judge had to decide whether or not
the defendant could be released (section 222). The judge was further
obliged to examine any application for release made by the defendant
(section 223).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained of the lack of adequate medical treatment in
pre-trial detention centre IZ-26/1 for the after-effects of his
concussion and his glaucoma. He relied on Article 3 of the
Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' observations
The
Government referred to the data from the applicant's prison medical
file and argued that both medical advice and all the necessary
medication had been available to the applicant in pre-trial detention
centre IZ-26/1 and after his transfer to a correctional institution.
The
applicant disagreed and maintained his complaints. He argued that the
available information confirmed that he had been suffering from a
medical condition during his detention and that the prison
authorities had failed to provide him with medical assistance in the
form of surgical treatment.
B. The Court's assessment
The Court recalls that Article 3 of the Convention
enshrines one of the most fundamental values of democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim's behaviour (see Labita v. Italy, judgment of 6 April
2000, Reports of Judgments and Decisions 2000-IV, § 119).
The Court further recalls that, according to its
case-law, ill treatment must attain a minimum level of severity
if it is to fall within the scope of Article 3. The assessment of
this minimum is relative; it depends on all the circumstances of the
case, such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the
victim (see, among other authorities, Ireland v. the United
Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, §
162). Although the purpose of such treatment is a factor to be taken
into account, in particular the question of whether it was intended
to humiliate or debase the victim, the absence of any such purpose
does not inevitably lead to a finding that there has been no
violation of Article 3 (see Peers v. Greece, no. 28524/95,
§ 74, ECHR 2001-III).
In
exceptional cases, where the state of a detainee's health is
absolutely incompatible with his or her detention, Article 3 may
require the release of that person under certain conditions (see
Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI ,
and Priebke v. Italy (dec.), no. 48799/99, 5 April
2001). However, Article 3 cannot be construed as laying down a
general obligation to release detainees on health grounds. It rather
imposes an obligation on the State to protect the physical well-being
of persons deprived of their liberty.
The
Court finally recalls that the State must ensure that the health and
well-being of detainees are adequately secured by, among other
things, providing them with the requisite medical assistance (see
Kudła v. Poland [GC], no. 30210/96, § 94, ECHR
2000 XI; see also Kalashnikov v. Russia, no. 47095/99,
§§ 95 and 100, ECHR 2002 VI).
Turning
to the present case, the Court notes at the outset that nothing in
the case file suggests, and indeed it has not been alleged by the
applicant, that his medical condition was in principle incompatible
with his detention in IZ-26/1 (see, by contrast, the Priebke
and Papon decisions, cited above). The question to be examined
by the Court is thus whether in the circumstances of the present case
the prison authorities of IZ-26/1 adequately secured the applicant's
well-being and health by providing him with the requisite medical
assistance.
The
Court will first examine the evidence relating to the state of the
applicant's health at the beginning of his detention in IZ-26/1. The
Court notes in this connection that even prior to his arrest on 28
October 1999 the applicant had previously suffered from the effects
of two episodes of concussion and from various problems with his
eyes, including suspected glaucoma. It further notes that the medical
report dated 29 October 1999 suggests that during his arrest on 28
October 1999 the applicant may have sustained some trauma to his
head. This is also confirmed by the fact that the medical reports of
15 November and 22 December 1999 mentioned “after-effects of
closed craniocerebral injuries”. On the basis of the above
materials, the Court concludes that on 5 November 1999, the date on
which the applicant was detained in IZ-26/1, he was already suffering
from eye problems, including suspected glaucoma, and from the
after-effects of some trauma to his head.
Since
the applicant did not allege or complain that during his detention in
IZ-26/1 he had contracted any other illnesses in respect of which he
had not received adequate medical assistance (see, by contrast,
Farbtuhs v. Latvia, no. 4672/02, § 57, 2 December
2004), the next issue to be examined by the Court is whether the
authorities of IZ-26/1 adequately secured the applicant's health by
providing him with the requisite medical aid.
As
regards the after-effects of the applicant's head trauma such as
dizziness, lack of appetite, nausea, asthenia and severe headache,
the Court notes that in response to the applicant's complaints on 15
November 1999 he was visited by an outside neurologist who diagnosed
him with the “after-effects of closed craniocerebral injuries”
and issued a prescription. For almost a month after this visit the
applicant underwent inpatient treatment in the medical unit of
IZ-26/1 and was then discharged in a satisfactory condition. The
parties did not dispute that the applicant was able to receive the
necessary medicine for his treatment from his family. On 22 December
1999 the applicant was again examined by an outside neurologist, who
made the conclusions quoted in § 63 above.
The
Court notes that after that visit the applicant did not repeat his
initial complaints about dizziness, lack of appetite, nausea,
asthenia and severe headache. Furthermore, the subsequent entry in
the applicant's medical file of 31 March 2000 stated that the
applicant's “general condition was satisfactory, he was fully
conscious and his hemodynamic indices were within normal limits”.
In
these circumstances, the Court finds that the applicant's health
concerns in this connection were adequately addressed by the prison
authorities of IZ-26/1 and that it cannot be said that the applicant
was denied medical assistance for the after-effects of his head
trauma.
As
to the suspicion of glaucoma, the Court notes that on 2 February 2000
the applicant announced that he had begun suffering from “unbearable
pain in the eyes”. On examination by an outside oculist on
15 March 2000, the applicant was diagnosed with “medium-degree
myopia, retinal angiopathy and secondary glaucoma (essential
hypertension)”. This diagnosis was broadly confirmed by the
head of the medical unit of IZ-26/1 on 16 March 2000, when the
applicant was still being held in that facility, and after the
applicant's transfer to a penitentiary facility and his release, in
medical examinations of 8 June, 10 August, 18 and 22 September
and 9 October 2001, 8 September 2003, 27 July and 9 and 24
December 2004 and 28 July, 10 and 28 November and 26 December
2006, all of which either diagnosed glaucoma or mentioned that it was
suspected. The Court further notes, and it seems undisputed between
the parties, that on several occasions during his detention in
IZ-26/1 the applicant requested the prison authorities to arrange for
surgery to his eyes. Since the prison authorities declined the
request the question arises as to whether the refusal could be
regarded as ill treatment falling within the ambit of Article 3.
The
Court recalls its well-established case-law that alleged
ill treatment must attain a minimum level of severity if it is
to fall within the scope of Article 3. The assessment of this minimum
is relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim. On the
facts, the Court notes that surgical intervention on the applicant's
eyes was one of the recommended treatments (see, for example,
paragraph 63 above). However, nothing in the case file suggests that
the condition of the applicant's eyes was so painful and serious that
it required urgent surgical treatment or that surgery was absolutely
indispensable. In fact, none of the applicant's medical reports or
certificates ever mentioned the need for either painkillers or any
kind of immediate intervention. This conclusion is further
corroborated by the conduct of the applicant, who not only refused an
offer of inpatient treatment in the surgical department of the prison
hospital after 24 September 2001 but also failed to undergo any kind
of treatment in this respect even after his release on 6 September
2002. Thus, from the medical certificates submitted by the applicant
and dated 2003, 2004 and 2006 it is clear that his glaucoma diagnosis
remained essentially unchanged.
In
view of the above and since there is nothing in these certificates or
any other materials in the case file to suggest that the condition of
the applicant's eyes deteriorated in any way as a result of the lack
of surgical intervention during his detention in IZ-26/1, the Court
is unable to conclude that the refusal of the prison authorities of
IZ-26/1 to arrange for surgery on his eyes constituted ill-treatment
falling within the ambit of Article 3.
Accordingly,
the Court's overall conclusion is that there has been no violation of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant was also dissatisfied with the authorities' failure to
examine speedily his application for release dated 25 April
2000. The Court will examine this complaint under Article 5 § 4
of the Convention, which provides:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. The parties' submissions
The
Government submitted that the applicant's application of 25 April
2000 had been received on 26 April, but since the case file had been
under examination by the competent prosecutor's office until
25 May 2000, its examination had been delayed until 26 May
2000. In their view, the delay was not excessive. In addition, they
argued that the District Court had not failed to comply with the
requirements of the domestic legislation. Under section 220.2 of the
Code of Criminal Procedure the judge had to review the lawfulness and
justification of a decision to impose or extend a period of detention
on remand no later than three days from receipt of the relevant
materials. In the instant case the file was received by the District
Court on 25 May 2000 and examined the next day.
The
applicant disagreed with the Government and maintained his
complaints.
B. The Court's assessment
The
Court reiterates that Article 5 § 4, in guaranteeing to detained
persons a right to institute proceedings to challenge the lawfulness
of their deprivation of liberty, also proclaims their right,
following the institution of such proceedings, to a speedy judicial
decision concerning the lawfulness of detention and ordering its
termination if it proves unlawful (see Musiał
v. Poland
[GC], no. 24557/94, § 43, ECHR 1999-II). The question whether a
person's right under Article 5 § 4 has been respected has to be
determined in the light of the circumstances of each case (see,
mutatis mutandis, the R.M.D. v. Switzerland judgment of
26 September 1997, Reports 1997-VI, p. 2013, § 42).
In
the present case, on 21 April 2000, a deputy Prosecutor General of
the Russian Federation authorised the extension of the investigation
and of the applicant's detention on remand until 28 May 2000. Four
days later, on 25 April 2000, the applicant contested the lawfulness
of the extension of his detention on remand before the courts and
requested that he be released. The complaint reached the District
Court on 26 April 2000 and was not examined until 26 May
2000, that is, one month later.
Having
regard to the duration in question and the fact that the examination
of the applicant's request did not involve consideration of
particularly complex issues (see Baranowski v. Poland,
no. 28358/95, § 72, ECHR 2000 III), and in view
of the other relevant circumstances of the case and of its
well-established case-law (see, for example, Rehbock v. Slovenia,
no. 29462/95, §§ 82-88, ECHR 2000 XII), the Court
considers that the applicant's request for release was not examined
“speedily” as required by Article 5 § 4.
The
Government's arguments that the applicant's case file had been under
examination by the competent prosecutor's office until 25 May 2000
and that the District Court did not breach the requirements of
domestic law do not alter this conclusion.
As
regards the first argument, the Court finds that a mere reference to
the fact that the case file was unavailable is clearly insufficient
to justify such a long delay. If there existed special reasons or
considerations which could have outweighed the need to respect the
applicant's individual right to speedy review of his detention and
required the domestic authorities to postpone examination of the
applicant's complaint of 25 April 2000 for one month, this should
have been indicated by the Government.
As
to the second argument, the Court notes that compliance with the
domestic law may be of relevance for the assessment of the compliance
with the “speediness” requirement of Article 5 § 4
of the Convention. However, on the facts, the domestic legislation
operated a formal three-day time-limit calculated from the date of
“receipt of the materials”. Since the Court uses the date
of lodging of an appeal by a detainee and not the date of “receipt
of the materials” for the purposes of assessing the speediness
of the review, the fact that the domestic law was complied with is
insufficient to justify the delay at issue.
There
has consequently been a violation of Article 5 § 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant considered that the criminal proceedings against him as a
whole had been unfair and that his detention in this connection had
been unlawful. He claimed 2,217,336 euros (EUR) for pecuniary damage
and EUR 700,000 for non-pecuniary damage.
The
Government considered the claims to be unfounded, grossly excessive
and unsubstantiated.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court further observes that the applicant must have suffered a
certain degree of stress and frustration as a result of the delayed
examination of his request for release. The actual amount claimed is,
however, excessive. Making its assessment on an equitable basis, it
awards the applicant the sum of EUR 500 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 1,000 for postal
expenses incurred before the Court.
The
Government did not agree with the amount claimed, stating that the
applicant had failed to substantiate the request.
According to the Court's case-law, an applicant is
entitled to reimbursement of costs and expenses only in so far as it
has been shown that these have been actually and necessarily incurred
and were reasonable as to quantum. Regard being had to the
information in its possession and the above criteria, the Court finds
it appropriate to award the applicant EUR 100 in respect of
costs and expenses, plus any tax that may be chargeable on the above
amount.
C. Default interest
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 UNANIMOUSLY
Holds that there has been no violation of
Article 3 of the Convention;
Holds that there has been a violation of
Article 5 § 4 of the Convention;
Holds
(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 500 (five
hundred euros) in respect of non-pecuniary damage and EUR 100 (one
hundred euros) in respect of costs and expenses, 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Peer
Lorenzen
Deputy Registrar President
