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ARUTYUNYAN v. RUSSIA - 48977/09 [2012] ECHR 7 (10 January 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/7.html
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[2012] ECHR 7
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FIRST
SECTION
CASE OF ARUTYUNYAN v. RUSSIA
(Application
no. 48977/09)
JUDGMENT
STRASBOURG
10
January 2012
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 Arutyunyan v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 48977/09)
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 Armen Vladimirovich Arutyunyan (“the
applicant”), on 6 August 2009.
2. The
applicant was represented by Mr O. Ivanov, a lawyer practising in
Krasnodar. The Russian Government
(“the Government”) were
represented by Mr G. Matyushkin, Representative of
the Russian Federation at the European Court of Human Rights.
3. The
applicant alleged, in particular, that he had been denied adequate
medical assistance during an unreasonbaly long pre-trial detention,
that a certain period of his pre-trial detention had lacked any legal
basis and that the conditions of his detention had been unsuitable
for a person in his state of health.
On
11 March 2010 the President of the
First Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1). Further
to the applicant’s request, the Court granted priority to the
application (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1970 and lived until his
arrest in Krasnodar.
A. Applicant’s state of health prior to his
arrest
In
2004 the applicant had two operations: a retinal laser coagulation of
the left eye and amputation of toes of the right foot. In the same
year, unsuccessful surgery led to the entire loss of sight in the
applicant’s right eye. Two years later, he underwent a kidney
transplantation. In August 2007 he was admitted to Krasnodar
Regional Clinical Hospital no. 1 where he underwent a number of tests
and received treatment for diabetes.
In
2008 the applicant’s hip joints were replaced with prostheses
in the Heidelberg Town University Clinique in Germany. As follows
from a letter issued on 22 July 2008 by the head of the Clinique
Medical Service, the applicant was required to make multiple monthly
visits to the Clinique for check ups and medical treatment. The first
such appointment was scheduled for August 2008.
Extract
no. 46707 of the applicant’s medical record drawn up on
22 December 2008 by a medical commission in Krasnodar Regional
Clinical Hospital no. 1 reads as follows:
“[The applicant]... is a disabled person
[officially recognised as having a] 1st degree disability;
[he] underwent inpatient treatment from 12 to 22 December 2008.
Clinical diagnosis: subcompensated type 1 insular
diabetes, severe state. Diabetic micro- and macroangiopathy. Diabetic
glomerulosclerosis. End stage chronic renal failure, terminal stage.
Diabetic retinopathy of both eyes; retinal detachment of
the right eye. Dysmetabolic encephalopathy. Gastroenteropathy.
Myelotoxic anaemia. Polyneuropathy. Polyserositis. Diabetic foot.
Condition after amputation of the 4th and 5th
toes on the right foot. Allotransplantation of a donor kidney
(November 2006). Permanent immunosuppression therapy. Osteochondritis
deformans juvenilis of hips. Condition after total hip replacement.
Acute respiratory disease.
Because of his main illness and associated
complications, the state of the patient’s health is serious ...
...
The
patient was informed about the seriousness of his condition and was
warned that if he failed to comply with the strict fluid balance,
diet, mandatory lab control, [and in the absence of] strict and
regular use of medicines (particularly the immunosuppressive drugs)
kidney transplant rejection and diabetes could occur.”
B. Criminal
proceedings against the applicant and detention
On
1 February 2009 the Novorossiysk Town Investigative Department of the
Krasnodar Regional Prosecutor’s Office instituted criminal
proceedings against the applicant on suspicion of involuntary
manslaughter.
1. Arrest and authorisation of detention on remand
Eleven
days later, the applicant was arrested. According to the prosecution
authorities, on 1 February 2009 in a local restaurant the applicant,
a prominent criminal leader, organised an assault in which five
individuals were severely injured. One of the victims died as a
result.
On
14 February 2009 the applicant’s detention on remand was
authorised and he was placed in temporary detention facility no. 5 in
Krasnodar. The facility occupied the ground and last floors of a
four-storey building constructed in 1938. The administrative offices
and technical facilities were located on the ground floor of the
building while the cells were located on the fourth floor. The
building was not equipped with a lift.
On
the applicant’s admission, the acting director of the facility
issued a report allowing the applicant to have a number of objects
usually prohibited for detainees. The list included a wheelchair, a
glucometer, a tonometer, specific medicines, disposable masks,
napkins, an additional mattress and a cushion for the wheelchair.
A
week later the applicant was charged with having organised aggravated
involuntary manslaughter.
On
21 February 2009 the applicant’s lawyers lodged a request with
a senior investigator of the Krasnodar Regional Investigative
Department, asking for the applicant to be transferred to a
specialised prison medical facility and to have him examined by a
number of medical specialists practising in the Krasnodar Region.
They alleged that the detention facility was unequipped to
accommodate the applicant’s needs. In support of their request
the lawyers relied on medical certificates issued prior to the
applicant’s arrest and argued that the applicant was a
seriously ill person whose state of health was bound to deteriorate
drastically in the conditions of the detention facility.
The
investigator dismissed the request on the same day, finding that
prison doctors had examined the applicant on his admission to
temporary detention facility no. 5 and had found him fit to be
detained in a regular detention facility and to participate in
investigative procedures. The investigator also stressed that the
applicant was under constant medical supervision by prison doctors
and that he received medical advice from other qualified and
experienced medical specialists. According to the investigator, the
applicant received the medicines necessary to maintain his health.
On
24 February 2009 the head of the Krasnodar Regional Nephrological
Centre (hereinafter – the Centre), assisted by another doctor
from the Centre, examined the applicant. They found that, in addition
to the illnesses listed in extract no. 46707 drawn up on 22 December
2008, the applicant suffered from gonarthrosis, cardiac dropsy,
secondary hyperparathyroidism, hyperuricaemia,
hypercholesteremia, viral hepatitis type C and chronic
cytomegalovirus [salivary gland virus] infection. The doctors also
concluded that the applicant’s diabetes was in the
decompensation phase. They laid down a long list of recommendations
to be followed, medical tests and examinations to be performed and
drug regimens to be complied with, indicating, inter alia, the
frequency and dosage of each medicine prescribed to the applicant.
In March 2009 the applicant’s lawyers, relying
on extensive medical evidence, including extract no. 46707 from the
applicant’s medical history, complained to the Oktyabrskiy
District Court about the investigator’s refusal to admit the
applicant to a prison hospital. On 6 March 2009 the lawyers amended
their claims, citing paragraph 9 of Decree no. 54 issued by the
Government of the Russian Federation on 6 February 2004, by
virtue of which individuals suffering from diabetes whose 24-hour
dose of insulin exceeds 60 units may be relieved from serving
sentences in correctional institutions. The counsel argued that the
applicant’s 24-hour regimen required 71 insulin units and
therefore his detention in a regular detention facility ran contrary
to the domestic legal requirements.
The
applicant’s medical history, submitted by the Government, shows
that on 5 March 2009 he refused to submit to blood glucose level
testing and to take an evening dose of prescribed medicines,
including insulin, arguing that his treatment was inadequate. Between
6 and 20 March 2009 the applicant occasionally refused to take an
increased dosage of medicines, complaining about side-effects such as
nausea and fatigue.
On
10 March 2009 a medical assistant of temporary detention facility no.
5 issued a medical certificate describing the applicant’s
health. The relevant part of the certificate read as follows:
“[The applicant] does not have any complaints at
the time of the examination.
...
2. Objective examination data: At the time of
the examination [the applicant’s] state of health is
satisfactory [and] corresponds to his existing illnesses ...
3. Diagnosis: subcompensated type 2 insular
diabetes; serious condition; [the applicant is receiving]
insulinotherapy. Allotransplantation of a donor kidney (November
2006).
4. Conclusion: no restrictions to [the
applicant’s] detention in temporary detention facility ...”
The
applicant submitted that no medical tests or analyses had been
performed during the examination on 10 March 2009. A simple
observation by “three women wearing white coats” had
resulted in a finding that his illnesses were not an obstacle to his
detention in the detention facility.
On
11 March 2009 the Oktyabrskiy District Court of Krasnodar dismissed
the lawyers’ complaint, repeating verbatim the text of the
investigator’s decision of 21 February 2009. In addition, the
District Court noted that a medical commission had confirmed the
applicant’s diagnoses but noted that he did not need urgent
medical assistance and that his state of health did not preclude his
participation in investigative procedures. The District Court
concluded that the applicant could be effectively provided with
medical assistance and treatment in the temporary detention facility.
The
applicant’s lawyers appealed.
On
20 March 2009 the applicant went on a hunger strike and refused to
take his medicines, notifying the authorities that the hunger strike
was his last attempt to draw their attention to his situation. Three
days later the applicant’s lawyers asked a senior prosecution
investigator to authorise a complex medical examination of the
applicant by specialists of the Health Ministry of the Krasnodar
Region and to transfer him to a prison hospital. Similar requests
were sent by those lawyers to various domestic authorities. The
lawyers also complained about the conditions of the applicant’s
detention, in particular the absence of daily outdoor recreation and
physical exercise due to the impossibility for the applicant to
descend in his wheelchair from the fourth floor of the detention
facility, where his cell was, to a recreation yard.
As
follows from the applicant’s medical record, on 24 March 2009
he resumed taking the prescribed medicines and stopped his hunger
strike. Between 10 and 29 April 2009 the applicant again refused to
take his medicines, complaining of a rapid deterioration in his
health and an absence of adequate medical attention.
On
22 April 2009 the Krasnodar Regional Court upheld the decision of 11
March 2009, endorsing the District Court’s reasoning.
A
week later a medical commission comprising medical specialists of the
detention facility and doctors from the Centre examined the applicant
and issued the following report:
“Having studied the health complaints, the medical
history, objective data and results of the medical examination ...,
the commission is bound to confirm that [the applicant’s]
kidney transplant has been rejected as a result of his refusal to
take prescribed immunosuppressants.
The commission’s attention was drawn to the fact
that despite numerous discussions about the consequences of such a
refusal, [the applicant] firmly continued refusing to take the
above-mentioned medicines. He also stated that he would refuse any
treatment provided in detention facility no. 5 in respect of any
complications arising from his refusal [to take the medicines].
[The applicant] stated that he had refused to take
medicines prescribed by the doctors from the Centre because he
considered that he had not received effective medical assistance in
respect of his complaints about toothache, pain in the area of his
hip replacements and problems with his eyes.
In an efficient manner, [the applicant] was once again
informed that the deterioration of his health was entirely due to his
intentional refusal to take the medicines (immunosuppressants)
prescribed by the specialists from the Centre and did not result from
any other illnesses.
The commission’s conclusion is as follows:
The
final diagnosis is:
Type
2 insulin diabetes in an advanced form, [the patient is receiving]
insulinotherapy. Diabetic nephropathy, nephroangiosclerosis,
chronic renal failure [in the end stage], condition after the donor
kidney transplant (2006). Kidney transplant rejection crisis on 28
April 2009 caused by an intentional refusal to take
immunosuppressants.
Diabetic
proliferative retinopathy, condition after surgery on the retinal
detachment of the right eye, partial massive hematopsia of the left
eye, condition following laser coagulation of the left eye.
Diabetic
angiopathy of the vessels of the lower extremities, diabetic foot,
condition following the amputation of the fourth and fifth toes of
the right foot.
Condition
following complete hip replacement (2008).
Morbid
obesity (extreme condition).
It
is imperative that [the patient] starts undergoing outpatient
haemodialysis and resumes taking the necessary medicines, in
particular, immunosuppressants.
[The
applicant] was offered an outpatient course of the haemodialysis
which is to be administered by specialists from the Centre with
special medical equipment in [detention facility] no. 5. He was also
notified that his refusal to take [medicines], irrespective of his
decision to undergo haemodialysis, would lead to a full rejection of
the transplant.
Following
this discussion [the applicant] gave his firm consent to undergo
haemodialysis [and] a subclavian insertion and to take medicines in
accordance with the course of immunosuppressants prescribed.
Due
to the fact that [the applicant’s] eyesight is very poor, a
text of the document confirming his consent to undergo haemodialysis
[and] a subclavian insertion and to take medicines in accordance with
the course of immunosuppressant treatment prescribed was prepared and
read out in the presence of the members of the commission and was
signed by [the applicant].”
On
30 April 2009 the applicant had his first session of haemodialysis
which was performed in a specially equipped room on the ground floor
of facility no. 5. The haemodialysis was carried out by specialists
from the Centre, as the prison doctors were not licensed to perform
the procedure. According to medical documents provided by the
Government, the applicant received haemodialysis at least once every
two days, with each session lasting from four to six hours. Prison
medical personnel examined the applicant daily, recording his blood
pressure, body temperature and blood glucose level, monitoring the
fluctuation of his body weight (between 149 and 136 kilograms),
controlling his intake of insulin, adjusting the drug regimen to meet
his needs, and so on.
The
medical documents show that the applicant frequently underwent
various X-ray exams and ultrasound scans, and was taken to the Centre
and a civil hospital for clinical testing and examinations by various
medical specialists. He also underwent a number of minor operations
involving insertion and replacement of catheters and endured lengthy
procedures, lasting for hours at a time, required to administer
medicines intravenously. The medical personnel of the detention
facility consulted specialists from the Centre on a daily basis,
including its head, for advice on adjusting the applicant’s
treatment to the changes in the state of his health and to his
complaints.
In
the meantime, on 9 April 2009 the Oktyabrskiy District Court extended
the applicant’s detention until 12 June 2009, having considered
that the gravity of the charges, as well as the applicant’s
liability to abscond, re-offend and obstruct justice warranted such
an extension. On 12 June 2009 his detention was extended for an
additional two months, until 12 August 2009, with the District
Court using identical reasoning to that in its decision of 9 April
2009. The detention order of 12 June 2009 became final on 8 July
2009 when the Krasnodar Regional Court concluded that the District
Court had correctly linked the applicant’s liability to abscond
and interfere with the investigation to the gravity and the character
of the charges against him.
On 11 August 2009 the Oktyabrskiy District Court again
extended the applicant’s detention for an additional two
months, finding that the gravity of the charges against him,
information about his personal history and his liability to abscond
warranted the extension. Having heard a prison doctor and studied
medical certificates issued by the medical personnel of the detention
facility, the District Court also found that the applicant’s
state of health was stable and did not preclude his detention in the
temporary detention facility. The decision was upheld on appeal on 26
August 2009.
On
24 September 2009 the applicant’s scheduled haemodialysis
session was interrupted due to the breakdown of the catheter. The
catheter could not be replaced until the following day, when
haemodialysis was resumed. On 5 October 2009 an ophthalmologist from
the microsurgical department of the Regional Clinical Hospital,
having examined the applicant and studied his medical history, found
that given the deterioration of the applicant’s eyesight
surgery had no prospects of success.
On 9 October 2009 the Oktyabrskiy District Court
examined an investigator’s request for a further extension of
the applicant’s detention until 24 November 2009. Having
accepted the investigator’s request, the District Court ruled
as follows:
“[The applicant] organised a particularly serious
criminal offence, as a result of which [the] victim ... died and
serious health damage was caused to Mr P. and Mr V.
Following an examination of [the applicant’s]
personal history, it was established that on 20 June 1994 the
Prikubanskiy District Court of Krasnodar had found him guilty of
criminal offences proscribed by Article 218 § 2 and Article 224
§ 1 of the RSFSR Criminal Code; the record of the criminal
conviction had expired; previously [he] had been charged on a number
of occasions with having committed criminal offences proscribed by
Article 163 § 2 [and] Article 330 § 3 of the Russian
Criminal Code; he was absolved from criminal responsibility on the
basis of amnesty acts.
Taking into account the information pertaining to [the
applicant’s] personal history and having regard to the serious
nature of the criminal offence committed by [the applicant], the
investigation rightfully considers that, if released, [the applicant]
will take active steps to influence witnesses, victims and other
parties to the criminal proceedings, and that [he] will destroy
evidence or, by other means, obstruct the objective investigation in
the case. Moreover, [the applicant] may flee the territory of the
Russian Federation to avoid criminal responsibility, rendering his
criminal prosecution impossible.
In this connection, the investigator concluded that
there were no grounds to change the preventive measure [applied to
the applicant] to one which did not involve him being isolated from
society and being detained ...
The defence lawyers and [the applicant] argued against
the investigator’s request. [They] considered that the
investigation had not put forward any item of evidence showing that
[the applicant] could influence the witnesses and victims or [that
he] could obstruct the investigation in any other way. [They] asked
to take into account the impossibility for [the applicant] to
continue being detained as he was very ill and relied on a wheelchair
for mobility. He had a kidney transplant which functioned poorly and
underwent haemodialysis four times a week. [They] asked for the
applicant to be provided with adequate medical assistance in a
medical facility under doctors’ supervision.
Having studied the material presented [and] having heard
the parties to the proceedings, the court finds that it is necessary
to extend [the applicant’s] detention as [the applicant] is
charged with having organised a particularly serious criminal
offence, there is sufficient information to conclude that, if
released, he may abscond during the investigation and trial or [he]
may obstruct the criminal proceedings by other means. The
investigator has still to perform a number of investigative
procedures in the case.
The information about the circumstances of the case
which were presented to the court, the gravity of the charges, [and]
the personal history of the accused, who has been criminally charged
before [and] who is the breadwinner for a minor child, confirm the
court’s conclusion that it is impossible to change the
preventive measure [applied to the applicant] to a more lenient one.
The court is of the opinion that detention is the sole preventive
measure corresponding to the requirements of the criminal proceedings
and ensuring the thoroughness and objectivity of the pre-trial
investigation having regard to the particular seriousness of the
criminal offence committed by [the applicant].
The court was not provided with material evidence
showing the presence of extenuating circumstances which could have
been taken into account by the court when it determined the issue of
the extension of [the applicant’s] detention.”
On
19 October 2009 the head of the Centre examined the applicant and
issued the following conclusion: “[his] condition corresponds
to the severity of the main and concomitant illnesses, in general
[it] is stable and relatively satisfactory”.
The
applicant’s lawyer requested a senior investigator of the
Krasnodar Regional Investigative Department to transfer the applicant
to a prison hospital, arguing that his health had continued to
deteriorate in the absence of adequate medical assistance. Three days
later the senior investigator dismissed the request, stating that the
deterioration of the applicant’s health was the direct result
of his refusal to accept medical assistance and to follow the
recommendations given by the medical personnel of the detention
facility. The senior investigator also noted that the current state
of the applicant’s health was stable and did not call for his
admission to a prison hospital.
Having
decided to obtain an independent expert opinion on the applicant’s
state of health, his lawyers submitted available medical records,
including those drawn up in the detention facility, to the
State-owned Scientific Research Institute of Transplantology and
Artificial Organs in Moscow (hereinafter – the Institute).
On
12 November 2009 they received a letter from the head of the Kidney
and Liver Transplants Department of the Institute, which, in so far
as relevant, read as follows:
“... it is impossible to make a firm conclusion
about [the applicant’s] state of health on the basis of the
medical documents presented. However, it is plainly evident that at
the present time the kidney transplant is not functioning and the
patient’s life is supported by the haemodialysis prescribed.
The non-functioning transplant may have to be removed if it is a
source of intoxication. Another kidney transplantation is not
warranted. Having regard to the severity of the [applicant’s]
primary and corresponding illnesses, the presence of the
non-functioning transplant, and [the applicant’s] detention in
the temporary detention facility in the absence of adequate clinical
instrumental laboratory control, there is a real risk that acute
complications leading to [the applicant’s] death will develop.
A full examination, preferably in a hospital, is advisable to
determine the further course of medical treatment to be taken,
namely, the provision of medicines and potential surgery.”
On 20 November 2009 the Oktyabrskiy District Court
authorised a further extension of the applicant’s detention
until 24 January 2010, finding that the grounds warranting his
detention, including the gravity of the charges and the applicant’s
liability to abscond, had not changed. The District Court concluded
that the defence lawyers’ arguments pertaining to the
applicant’s health did not outweigh the grounds calling for his
detention.
On 3 and 15 December 2009 the District Court examined
the lawyers’ requests for the applicant’s release and for
his transfer to a medical institution respectively. Both requests
were dismissed as the District Court considered that the applicant
was receiving sufficient medical assistance in detention facility no.
5. A similar request for the applicant’s placement in a prison
hospital was dismissed by the senior investigator on 16 December
2009.
In
the meantime, on 9 December 2009 the applicant was examined by a
cardiologist and a phlebologist from civil hospitals. He was
diagnosed with ischemic heart disease, diabetic angiopathy and
thrombosis of the lower extremities. Treatment was prescribed. A week
later the applicant again experienced problems with the intravenous
catheter, making it impossible for him to complete the haemodialysis
scheduled for that day. In the following week, urgent consultations
between the medical personnel of the detention facility and
specialists from the Centre took place for the purpose of finding a
solution to the problem. On 25 December 2009 four leading
medical experts from the Centre and a civil hospital performed
surgery on the applicant in the detention facility with a view to
installing a twenty-centimetre central vein catheter. Following a
number of unsuccessful attempts, the doctors were finally able to
insert it. Three days later the applicant refused to undergo
haemodialysis, complaining of pain in the area of the catheter
insertion and extreme fatigue and weakness. On the following day,
given the serious deterioration of his health, the applicant agreed
to go down to the ground floor to undergo haemodialysis.
The
applicant’s medical records show that whenever his catheter
malfunctioned and was replaced, he was provided with a course of
antibiotics to prevent infection.
On
25 December 2009 a prison physician examined the applicant and issued
a medical certificate describing his state of health. The relevant
part of the certificate reads as follows:
“Since the beginning of his detention in
[detention facility no. 5] the patient has been under constant
medical supervision; the level of glucose in his blood (before every
meal), blood pressure, fluid balance, body temperature and other
indicators are monitored daily. An examination of all the relevant
biochemical blood parameters, including at cyclosporine level, and
all additional medical examinations authorised by medical specialists
(ultrasound scanning of the heart, vessels, abdominal cavity, kidneys
..., adrenal glands, bladder and prostate; X-ray examinations of the
chest and hip joints, and electrocardiogram) are performed whenever
necessary, but no less than once a week. On a number of occasions the
patient has been examined by medical specialists (an endocrinologist,
a urologist, a surgeon, a traumatologist-orthopaedist, an
ophthalmologist, a vascular surgeon and a cardiologist) from
municipal health institutions.
The patient is under ongoing supervision by doctors from
the Nephrological Centre, who perform scheduled outpatient
haemodialysis three or, if necessary, four times a week. On a number
of occasions [the applicant] was examined by a specialist in kidney
transplantology – Professor Ya., Doctor of Medicine, in the
detention facility; [Dr Ya.] is also constantly informed of the
results of the clinical supervision, and of complex biochemical and
other examinations. Medical specialists regularly organise
consultations with Dr Ya.’s participation (the most recent one
[took place] on 15 December 2009); the course of future medical
treatment and necessary diagnostic measures are determined during
[those consultations].
The patient is also under constant supervision by an
endocrinologist; the level of glucose in his blood is measured daily
before every meal; a log is kept of the dosage of glycaemia [and]
insulin [he receives]; [and] consultations about the insulin dosage
regimen take place.
During his detention in [detention facility no. 5] [the
applicant] constantly violated his dietary regimen [and] refused to
keep a “dietary diary”; on a number of occasions [he]
refused to take insulin and medicines; after 10 April 2009 he
completely refused to take immunosuppressive medicines, which are
necessary for his kidney transplant to function. [The applicant]
willingly and knowingly impaired his health, despite regular
discussions about the necessity of renewing the course of the
immunosuppressive medicines and the patient’s awareness of the
consequences of his refusal of the treatment ... As a result of those
actions [the patient’s] kidney transplant stopped functioning
and since 30 April 2009 [he] has been undergoing permanent
haemodialysis, despite the fact that he has resumed taking medicines
and begun complying with the [recommended] dietary regime.
The haemodialysis is performed by specialists of the
Regional Nephrological Centre in a special cell in [detention
facility no. 5]. [The applicant] is afforded an opportunity to rest
for the necessary period of time in a special armchair after each
scheduled session of haemodialysis. After the glucose level in his
blood has been checked ..., with the warders’ help and in the
presence of a medical specialist [the applicant] ascends a staircase
to his cell with the wheelchair.
When ascending the staircase in small steps being held
by the arms, [the applicant] rests in his wheelchair after every 2 or
3 flights of stairs for as long as necessary. If necessary, the
above-mentioned parameters are measured. On the upper floor of the
detention facility building [the applicant] is taken to his cell in
the wheelchair, where he is examined by medical personnel if
necessary.
...
Medical specialists – an endocrinologist,
ophthalmologist, traumatologist-orthopaedist, vascular surgeon and
specialists of the Nephrological Centre – consider that at the
present time the patient’s health is stable, despite his
existing serious chronic illness. [The applicant’s] health does
not at present call for urgent medical assistance or inpatient
treatment. The necessary medical and diagnostic procedures prescribed
by medical specialists are performed in corpore and timeously.
Therefore, the deterioration of [the applicant’s]
health was entirely caused by his willing and knowing actions. The
administration of the detention facility and the medical unit of the
detention facility, with the participation of medical specialists in
the fields connected to [the applicant’s] illnesses,
implemented an entire set of medical measures necessary to maintain
[the applicant’s] health and to eliminate the consequences of
his wilful actions. As a result of those measures [the applicant’s]
state of health is stable and does not preclude his detention in
[detention facility no. 5].”
In
January and February 2010 the applicant received haemodialysis at
least once every two days. On 14 January 2010 a surgeon was called in
to examine the applicant in response to his complaints of severe pain
in the right knee, which intensified during physical activity. The
applicant was diagnosed with degenerative arthritis of the right knee
joint and prescribed treatment. On 22 January 2010 he underwent
another replacement of the catheter in the detention facility.
Another replacement was carried out in the detention facility a month
later.
In the meantime, in the beginning of January 2010 the
prosecution authorities closed the investigation and transferred the
case file to the trial court. On 21 January 2010 the Oktyabrskiy
District Court scheduled the first trial hearing and held that the
trial proceedings were to be conducted in camera because the
applicant and his five co-defendants had criminal records and were
liable to threaten witnesses and other parties to the proceedings.
The District Court also examined the lawyer’s petition for the
applicant’s release and dismissed it, finding that the
applicant’s health did not preclude his detention on remand and
concluding that “the preventive measure applied in respect of
[the applicant] should remain unchanged”. However, it agreed to
call two medical experts proposed by the defence to determine whether
the applicant was in need of a complex medical examination or any
specific medical procedures.
The
applicant’s lawyers appealed, arguing that the applicant’s
detention after 24 January 2010 had been unlawful, as the District
Court had failed to extend his detention officially and its decision
to dismiss the request for the applicant’s release could not
substitute a proper detention order.
At the hearing on 28 January 2010 the lawyers again
asked the District Court to release the applicant as there were no
grounds for his continued detention. They also argued that the
time-limit for the applicant’s detention had expired on 24
January 2010 and that his detention after that date had been unlawful
as it was not covered by a proper legal order. A prosecutor lodged a
counter-claim, asking to extend the applicant’s and his
co-defendants’ detention until 11 July 2010. The District Court
accepted the prosecutor’s request and collectively extended the
applicant’s and his co-defendants’ detention until 11
July 2010, noting that there were no grounds for their release.
On
17 February 2010 the Krasnodar Regional Court upheld the decision of
28 January 2008, having dismissed the argument that the applicant’s
detention between 24 and 28 January 2010 had been unlawful. While
acknowledging that on 21 January 2010 the District Court had examined
the matter at the applicant’s lawyer’s request, the
Regional Court reasoned that the examination constituted a de
facto extension of the detention.
On
18 May 2010 the Oktyabrskiy District Court found the applicant guilty
as charged and sentenced him to eleven years’ imprisonment.
As
follows from the applicant’s medical history submitted by the
Government, since March 2010 the applicant has fully complied with
the prescribed course of drug treatment and has occasionally failed
to adhere to the dietary recommendations of the prison’s
medical specialists. He occasionally refused to submit to
examinations by medical specialists from the Centre and civil
hospitals, citing extreme weakness, fatigue and his poor state of
health as reasons for those refusals. In the second half of April
2010 the amount of haemodialysis was intensified, becoming a daily
procedure. As follows from the applicant’s medical history, the
only days when he did not have haemodialysis were the days on which
trial hearings took place. In May 2010 the applicant was examined by
a surgeon, an ophthalmologist, a urologist and an endocrinologist,
who, having confirmed the previous diagnosis and having noted no
major changes in the applicant’s state of health, concluded
that it did not preclude his detention in facility no. 5.
According to the Government, since the first day of
his detention the applicant had lodged at least thirty complaints
with the director of the detention facility concerning the conditions
of his detention and quality of medical care. He had also lodged
numerous similar complaints with various State authorities, including
the prosecutors’ offices and the Federal Security Service. In
particular, the Government provided a copy of the applicant’s
complaint of 29 May 2009 in which he informed the director of his
refusal to continue haemodialysis in view of his inability to
continue to endure the “inhuman treatment” accompanying
that procedure. He asked to notify his relatives of his wish to be
buried in Yerevan. The complaint bears a handwritten note by the
facility director stating that a discussion with the applicant had
resulted in his consent to go on with the treatment. The applicant’s
repeated complaints to the facility director regarding his inability
to descend the stairs for his haemodialysis sessions either resulted
in the applicant agreeing to continue the haemodialysis or the
director’s promise to consult engineers on the subject of
equipping the facility with a mechanism which would allow the
applicant to descend and ascend the stairs more easily. One of the
applicant’s complaints to State authorities brought a response
from the Federal Supervision Service for the Health and Social
Development Sectors. By a letter of 17 August 2010 the acting
director of the service informed the applicant that “the
performance of ... haemodialysis either in a temporary detention
facility or in a correctional colony does not have any legal basis”.
Another
certificate provided by the Government shows that during the entire
period of the applicant’s detention he was taken for a walk in
the recreation yard of the facility twice: on 16 and 17 May 2010. The
Government alleged that the applicant had consistently refused to
leave the cell to be taken for a walk.
Current state of the applicant’s health
The
applicant provided the Court with an expert report issued on 21 May
2010 by two leading forensic medical experts. Having studied his
complete medical history, the experts concluded as follows:
“... as a result of his main illness (insular
diabetes) [the applicant’s] central nervous system,
cardiovascular system, visual organs, kidneys, stomach [and] thyroid
body were damaged.
Progress of type-one insular diabetes is, usually,
gradual; [however, it becomes] more rapid if stress or other
illnesses are present ...
[The applicant’s] body movement is restricted as
he suffers from osteochondrosis of the whirl bones and has undergone
a complete hip replacement.
[The applicant’s] hepatitis C ... and chronic
Wyatt’s syndrome substantially aggravate his main illness.
... the severity of the [applicant’s] main and
concomitant illnesses, his non-functioning renal transplant, and his
detention in facility no. 5 in the absence of proper clinical,
instrumental and laboratory supervision make the risk of development
of lethal complications very real.
The fact that [the applicant] suffers from the listed
illnesses leads to the conclusion that he is in need of constant
supervision and treatment by medical specialists which could only be
provided in specific hospitals ...
It is virtually impossible for [the applicant] to
receive the required [medical care] in the conditions of detention
facility no. 5 ...
Type-one insular diabetes and chronic renal failure in
the terminal stage, from which [the applicant] suffers, are included
in the List of Illnesses Precluding [a detainee] from Serving a
Sentence, as adopted by Decree no. 54 on 6 February 2004 by the
Government of the Russian Federation.”
The
experts were also under impression that the medical personnel caring
for the applicant had “deliberately understated the seriousness
of [his] condition and [had] deliberately amended [the] diagnosis
previously confirmed by specialised clinical medical facilities”.
On
5 July 2010 the applicant was sent to serve his sentence in
correctional colony no. 2 in the Astrakhan Region. On arrival at the
colony he was immediately admitted to the prison hospital. However,
two days later, given the assessment of his state of health by the
prison doctors, the applicant was transferred to the resuscitation
department of the Aleksandro Mariinskiy Regional Clinical
Hospital where he started receiving daily haemodialysis and extensive
insulin and immunosuppressive therapy. Having examined the applicant
on 6 August 2010 the medical commission, comprising a number of
medical specialists, including those from the colony hospital, issued
a report which, in its relevant part, read as follows:
“The general condition of the patient is serious
...
The patient suffers from obesity of the third degree –
he weighs over 130 kilograms; it is clearly insufficient to [treat
him] with haemodialysis as an out-patient three times a week; on days
when haemodialysis is not performed [the applicant] suffers from
excessive hydration, hyperpotassemia, and increasing uremic
intoxication, which can only be treated with haemodialysis in the
conditions of a resuscitation department in a hospital. Given the
severity of his main illness, [the applicant’s] excessive body
weight (insufficient haemodialysis) haemodialysis often has to be
performed urgently outside the schedule ... in the conditions of the
resuscitation department. The most appropriate schedule [for the
applicant] is daily haemodialysis in the resuscitation unit. The
presence of a non-functioning transplant requires regular
instrumental control (ultrasound exams ...), examinations by a
transplantologist, adjustment of dosage of immunosupressants, [and] a
well-timed decision concerning the removal of the transplant. The
presence of the haemodialytic catheter in the external jugular vein
requires constant care with the aim of preventing infection and
thrombosis of the life supporting vascular access for
haemodialysis. Given the fact that [the applicant] underwent a
complete hip replacement with an endoprosthesis he is unable to move
without assistance and to care for himself which, in its turn,
requires that [the applicant] should be permanently assisted by
carers.”
The
commission’s conclusion was that the applicant was suffering
from illnesses which should preclude his serving the sentence, as
declared by the Government’s Decree no. 54 of 6 February 2004.
The
colony director applied to the Leninskiy District Court of Astrakhan
seeking the applicant’s release given his inability to serve
the remaining part of his sentence. The director’s request was
supported by the medical personnel of the colony hospital, the head
of the Astrakhan Town Haemodialysis Centre and the head of the
endocrinology department of the Aleksandro-Mariinskiy Regional
Clinical Hospital. The doctors argued in open court that the
applicant could not stay in the colony and should be permanently
admitted to a hospital for life-supporting therapy.
On
25 August 2010 the District Court dismissed the request for release,
having found that the applicant’s health problems partly
resulted from his own careless decisions not to take medicines on
certain occasions. The Court also took into account that the
applicant was receiving full medical assistance and that he had only
served a month and a half of his long-term sentence.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND REPORTS
Russian
law does not contain specific rules or requirements regulating the
detention of disabled individuals, including wheelchair-bound
detainees.
The
relevant provisions of the domestic and international law on general
health care of detainees are set out in the following judgments:
Pakhomov v. Russia,
no. 44917/08, 30 September 2011; Yevgeniy
Alekseyenko v. Russia, no. 41833/04,
27 January 2011; and Enea v. Italy [GC], no. 74912/01,
§ 48, 17 September 2009.
The Russian legal regulations of
detention matters are explained in the judgment of Isayev
v. Russia, no. 20756/04, §§ 67-80, 22 October 2009.
The
Government’s Decree no. 54 of 6 February 2004 regulates medical
examinations of convicts eligible for an early release in view of
their state of health. The same Decree contains a list of illnesses
that preclude a convict from serving the sentence. In particular, the
Decree indicates that individuals suffering from a grave form of
diabetes whose 24-hour dose of insulin exceeds 60 units may be
relieved from serving sentences in correctional institutions (§
9).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF DETENTION AND THE QUALITY OF MEDICAL
CARE
The
applicant complained that his detention in a
regular detention facility, in view of his state of health, amounted
to inhuman and degrading treatment contrary to Article 3 of the
Convention. He further complained that the authorities’ refusal
to transfer him to an outside hospital had stripped him of the
opportunity to receive effective medical care. Article 3 reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Submissions by the parties
The
Government put forward a two-fold argument submitting that the
applicant’s complaint is both manifestly ill-founded and
inadmissible due to his failure to exhaust domestic remedies. In
particular, they insisted that the applicant, while having lodged
numerous complaints with the detention facility administration and
various executive authorities, had not taken “full advantage of
the domestic remed[ies]”. In the Government’s opinion, a
tort action against the detention facility could have provided the
applicant with the desired relief in the form of “the
restoration of his allegedly violated rights or compensation for
non-pecuniary damage”. The Government supported their
submission with a reference to two judgments issued by Russian courts
in favour of former inmates who had obtained compensation for damage
resulting from the inadequate conditions of their detention or
ineffective medical care. Citing Resolution no. CM/ResDH(2010)35
adopted on 4 March 2010 by the Committee of Ministers of the Council
of Europe, they further stressed that there was a developing judicial
practice in Russia “of awarding compensation for non-pecuniary
damage caused by poor detention conditions”.
The
second line of the Government’s argument devoted to the
ill-founded character of the applicant’s complaint was based on
the opinion of various prison medical authorities, as well as medical
specialists of the Centre, who had found the applicant fit to be
detained in a regular temporary detention facility. The Government
argued that the applicant had received adequate medical care
comprising regular examinations and clinical testing by a large
number of prison and civilian medical personnel and a life-supporting
chemotherapy regimen. The administration of the detention facility
had taken every possible step to safeguard the applicant’s
health. Doctors from the Centre had provided him with medical
services in a special room on the ground floor of the facility where
the necessary medical equipment had been installed. The Government
noted that it had been impossible to transfer the applicant to any
prison hospital in the Krasnodar Region as they had not had the
medical equipment to perform haemodialysis. The Government firmly
believed that the sole reason for the deterioration of the
applicant’s health was his irresponsible behaviour, namely,
occasional refusals to take medicines, including insulin and
immunosuppressants.
While
describing the conditions of the applicant’s detention in
facility no. 5, the Government particularly stressed the efforts
which the facility administration had undertaken to accommodate the
applicant, a wheelchair-bound detainee. For instance, the director of
the facility had allowed the applicant to have certain items,
including a wheelchair and medical equipment, which inmates were not
normally allowed to have in prison. The facility staff had also tried
to make his walk to and from the haemodialysis room as comfortable as
possible. Having acknowledged that although it was not possible to
install a lift in the facility or transfer the applicant to a cell on
the ground floor of the facility, the Government noted that warders
and a prison nurse had always helped the applicant up and down the
stairs, and allowed him to rest in the wheelchair between the flights
of stairs for as much time as he had needed to recover his strength.
According to the Government, the fact that the applicant had refused
the warders’ proposal to be carried on a stretcher whenever he
had needed to leave his cell clearly demonstrated that the applicant
had not experienced any suffering during those walks. It had also
been the applicant’s own choice not to leave his cell for daily
walks in the recreation yard of the detention facility.
Relying
on the reports issued by various civil medical experts, the applicant
argued that the facility administration had amended his diagnosis,
understating the seriousness of his condition, and had deliberately
treated him in a manner meant to cause him additional suffering. His
refusals to take medicines or to undergo certain medical procedures,
as well as his going on hunger strikes, had been measures of last
resort meant to attract attention to his case and to force the
facility administration to provide him with medical care of a proper
quality. The applicant insisted that in violation of the requirements
of the domestic law and despite the absence of qualified medical
personnel and necessary medical equipment, the Russian authorities
had refused to admit him to a prison hospital and had kept him in the
detention facility, where only healthy inmates should have been
detained. Every day he had been forced to endure the walk from the
fourth to the ground floor of the building to receive lengthy
haemodialysis, to undergo testing or other medical procedures, to
take part in court hearings or to meet his lawyers. The warders’
assistance during those walks could not alleviate the suffering,
pain, humiliation and distress which he had experienced. The
applicant noted that it should not have come as a surprise to the
facility authorities that he had refused to descend the stairs to
take a daily walk in the recreation yard.
The
applicant considered that the strongest evidence of the unlawful and
cruel attitude of the facility administration had been the fact that
merely days after his transfer to the correctional colony he had been
admitted to the civil hospital, as the doctors had considered his
condition to be life threatening. The applicant insisted that there
had been no change in the state of his health in the period preceding
his transfer to the colony. However, the colony personnel had been
more honest in assessing the seriousness of his condition. Moreover,
the colony authorities, supported by the medical personnel of both
the prison hospital and civil clinics, had applied for his early
release, arguing that his state of health was so poor that his
further detention had been impossible.
B. The Court’s assessment
1. Admissibility
As
to the Government’s argument pertaining to the applicant’s
failure to lodge a tort action against the facility administration,
and, thus, to exhaust domestic remedies, the
Court reiterates that, apart from lodging a large number of
complaints with the facility administration and various
law enforcement and executive authorities (see paragraph 46
above), the applicant tried to avail himself of judicial
protection. His counsel lodged a number of complaints with the court,
unsuccessfully arguing that the conditions of detention in facility
no. 5 were inappropriate for a seriously-ill inmate such as the
applicant, and seeking his transfer to a prison hospital or
conditional release (see paragraphs 17, 28, 30, 35 and 36 above).
The Court notes that the domestic courts took cognisance of the
merits of the lawyers’ complaints, sought the investigator’s
opinion on the possibility for the applicant to be detained in the
conditions of the regular temporary detention facility, examined the
reasonableness of the investigator’s decisions to refuse the
applicant’s transfer to a prison hospital or to authorise his
release and based their conclusions on medical reports and the
facility authorities’ assurances, taking the view that the
conditions in facility no. 5 were appropriate for the detention of
the applicant.
The Court observes that the Government did not argue that, in
pursuing this avenue of judicial review, the applicant had removed
from the courts the option of examining the relevant issues. They
merely insisted that a tort action was the proper formal judicial
avenue for the applicant. The Court, however, does not find it
unreasonable that in a situation where the domestic courts had
analysed, a number of times, the applicant’s complaint of
inadequate conditions of detention, he did not lodge a separate
action with the same court following the formal tort procedure as
required by the Russian Civil Code. In circumstances where the
domestic courts at two levels of jurisdiction had examined and
dismissed the applicant’s complaints, having found that the
conditions of his detention fully complied with the domestic legal
norms, it is not apparent that a tort action before the same courts
would have been any more successful, would have been decided on the
basis of any other issues or could have even passed the admissibility
stage (see Guliyev v. Russia, no. 24650/02, § 55, 19 June
2008, and Valašinas v. Lithuania (dec.), no. 44558/98,
4 March 2000). The Court does not lose sight of the fact that the
Government have not argued otherwise.
In
the light of the foregoing, the Court considers that it has not been
established with sufficient certainty that the remedy advanced by the
Government could have been effective in the particular circumstances
of the present case (see, mutatis mutandis, Vladimir
Romanov v. Russia, no. 41461/02, §§ 50-52, 24 July
2008).
The
Court reiterates that the rule of exhaustion of domestic remedies
must be applied with some degree of flexibility and without excessive
formalism. It has already held on a number of occasions that the rule
of exhaustion is neither absolute nor capable of being applied
automatically; for the purposes of reviewing whether it has been
observed, it is essential to have regard to the circumstances of the
individual case (see Akdivar and Others v. Turkey, 16
September 1996, § 69, Reports of Judgments and Decisions
1996 IV, and Aksoy v. Turkey, 18 December 1996, §§
53-54, Reports of Judgments and Decisions 1996-VI). The
objection of non-exhaustion of domestic remedies cannot be raised
against an applicant if, in spite of the latter’s failure to
observe the forms prescribed by law, the competent authority has
nevertheless examined the substance of the claim (see, mutatis
mutandis, Dzhavadov v. Russia, no. 30160/04,
§ 27, 27 September 2007; Skałka v. Poland
(dec.), no. 43425/98, 3 October 2002; Metropolitan
Church of Bessarabia and Others v. Moldova (dec.),
no. 45701/99, 7 June 2001; and Edelmayer v. Austria
(dec.), no. 33979/96, 21 March 2000). The Court
therefore finds that since the same domestic courts, to which a tort
action laid, examined the substance of the applicant’s
complaints about the inadequate conditions of his detention, he
cannot be said to have failed to exhaust domestic remedies. The Court
therefore dismisses the Government’s non-exhaustion objection.
The
Court further notes that this part of the application is not
manifestly ill founded within the meaning of Article 35 § 3
(a) of the Convention and that it is not inadmissible on any other
grounds. The complaint must therefore be declared admissible.
2. Merits
(a) General principles
In
accordance with the Court’s settled 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, Price v. the United Kingdom, no. 33394/96, §
24, ECHR 2001-VII; Mouisel v. France, no. 67263/01, § 37,
ECHR 2002-IX; and Naumenko v. Ukraine, no. 42023/98, § 108,
10 February 2004). Allegations of ill-treatment must be
supported by appropriate evidence (see, mutatis mutandis,
Klaas v. Germany, 22 September 1993, § 30, Series A
no. 269). To assess this evidence, the Court adopts the standard of
proof “beyond reasonable doubt” but adds that such proof
may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Ireland v. the United Kingdom, 18 January 1978, §
161 in fine, Series A no. 25, and Labita v. Italy
[GC], no. 26772/95, § 121, ECHR 2000-IV).
In
order for a punishment or treatment associated with it to be
“inhuman” or “degrading”, the suffering or
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment (see Jalloh v. Germany
[GC], no. 54810/00, § 68, ECHR 2006-IX).
With
particular reference to persons deprived of their liberty, Article 3
imposes a positive obligation on the State to ensure that a person is
detained in conditions which are compatible with respect for his
human dignity, that the manner and method of the execution of the
measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention
and that, given the practical demands of imprisonment, his health and
well-being are adequately secured by, among other things, providing
him with the requisite medical assistance (see Kudła v.
Poland [GC], no. 30210/96, § 94, ECHR 2000-XI, and Rivière
v. France, no. 33834/03, § 62, 11 July 2006).
Hence, a lack of appropriate medical care and, more generally, the
detention in inappropriate conditions of a person who is ill may in
principle amount to treatment contrary to Article 3 (see, for
example, İlhan v. Turkey [GC], no. 22277/93, § 87,
ECHR 2000-VII, and Naumenko, cited above, § 112).
The
Court often faces allegations of insufficient or inadequate medical
care in places of detention. Although Article 3 of the Convention
cannot be construed as laying down a general obligation to release
detainees or place them in a civil hospital, even if they are
suffering from an illness which is particularly difficult to treat
(see Mouisel, cited above, § 40), it nonetheless imposes
an obligation on the State to protect the physical well-being of
persons deprived of their liberty. The Court cannot rule out the
possibility that in particularly serious cases situations may arise
where the proper administration of criminal justice requires remedies
to be taken in the form of humanitarian measures (see Matencio v.
France, no. 58749/00, § 76, 15 January 2004, and
Sakkopoulos v. Greece, no. 61828/00, § 38, 15 January
2004). In exceptional circumstances, Article 3 may go as far as
requiring the conditional liberation of a prisoner who is seriously
ill or disabled. In applying these principles, the Court has already
held that the detention of an elderly sick person over a lengthy
period may fall within the scope of Article 3 (see Papon v. France
(no. 1) (dec.), no. 64666/01, ECHR 2001-VI;
Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR
2001-VI; and Priebke v. Italy (dec.), no. 48799/99, 5 April
2001). For instance, in Farbtuhs v. Latvia, (no. 4672/02,
2 December 2004), the Court concluded that the detention of a
disabled seventy-nine-year-old applicant was in breach of Article 3
on account of “his age, infirmity and health situation”.
Furthermore, the Court has held that detaining a person suffering
from tetraplegia in conditions inappropriate to her state of health
amounted to degrading treatment (see Price, cited above, §
30).
In
deciding whether or not the detention of a seriously ill person
raised an issue under Article 3 of the Convention, the Court has
taken into account various factors. Thus, in Mouisel v. France
(no. 67263/01, §§ 40 42, ECHR 2002-IX) the Court
examined such elements of the case as (a) the medical condition of
the prisoner, (b) the adequacy of the medical assistance and care
provided in detention and (c) the advisability of maintaining the
detention measure in view of the state of health of the applicant.
This test was further developed in the case of Gelfmann v. France
(no. 25875/03, 14 December 2004), where the Court took into
account, among other relevant factors, the dynamics of the
applicant’s health condition, the possibility of conditional
release or parole for a seriously ill detainee if his health
deteriorated, and the applicant’s own attitude (namely, his
persistent refusal to cooperate with the doctors). In the cases
of Henaf v. France (no. 65436/01, §§ 49 et
seq., ECHR 2003-XI) and Mouisel (cited above) the Court also
analysed whether the application of handcuffs or the shackling of a
seriously ill detainee to his bed was justified by any security
risks. The applicant’s potential “dangerousness”
was also taken into account in the case of Sakkopoulos v. Greece
(no. 61828/00, § 44, 15 January 2004) in order to decide
whether his continuous detention was justified.
(b) Application of these principles to the
present case
In
the present case the question arises whether the conditions of the
applicant’s continued detention in facility no. 5 were
compatible with his state of health and whether that situation
attained a sufficient level of severity to fall within the scope of
Article 3 of the Convention.
The
Court observes that there is no particular discrepancy in the
parties’ description of the conditions of the applicant’s
detention or his state of health during his detention in facility no.
5. Plainly, the applicant, a wheelchair-bound person with numerous
health problems including a failing renal transplant, extremely poor
eyesight, severe obesity and a serious form of insular diabetes, was
detained in a regular detention facility for almost seventeen months,
between February 2009 and July 2010. The Court further notes that,
while it appears that the judge who authorised the applicant’s
placement in custody took no steps, before committing him to a
regular detention facility, to ascertain where he would be detained
or to ensure that it would be possible to provide adequate facilities
given his severe level of disability, on every other occasion when
the question of the extension of the applicant’s detention
arose or when he complained about the conditions of his detention,
the courts considered the detention facility suitable for
accommodating his needs as a disabled detainee. However, the Court
finds it significant that the documentary evidence submitted by the
parties, including medical records and expert reports, indicate that
the detention authorities were unable to adequately cope with the
applicant’s special needs.
Following
his arrest, the applicant was kept in detention facility no. 5,
having been placed in a cell on the last floor of the four-storey
facility building without a lift. On admission he was allowed to have
a wheelchair and a number of medical items, usually forbidden on the
facility premises but which the authorities considered indispensible
for his daily life. The Court reiterates the applicant’s
allegations that a variety of conditions at facility no. 5 interfered
with his ability to be an independent functioning human being. Among
the conditions he complained of were the inaccessibility of the
facilities on the ground floor, counting the recreation yard and
visiting rooms, the inappropriate sanitary conditions for a person of
his state of health, hazardous access to life-supporting medical
facilities installed on the ground floor and the existence of
impediments on his way to court hearings, medical procedures
performed outside the detention facility, and so on.
The
list of the applicant’s grievances may be divided into two
major groups, with the first one concerning his access to the
administrative, technical, recreational and medical facilities in the
building or to those outside, such as the courthouse or hospitals,
and the second one being based on his general dissatisfaction with
the fact that he was kept in the conditions of a regular detention
facility rather than in a prison hospital.
As
to the first group of complaints, the Court reiterates that the
applicant’s access to all the facilities listed above lay down
four flights of stairs. While the frequency of his trips to the
ground floor during the first three months of his detention cannot be
ascertained, it appears that after the failure of his renal
transplant and initiation of haemodialysis at the end of April 2009,
his use of the stairs became a daily occurrence. The Court observes
that at least four times a week for almost fifteen months the
applicant, a disabled and extremely overweight individual who
depended on a wheelchair for mobility, had to descend and ascend four
flights of stairs on his way to and from the lengthy, complicated and
tiring vital medical procedure of haemodialysis. He had to endure
similar trips whenever he needed to visit the medical unit, see his
lawyer, undergo clinical testing in the Centre, take part in
investigative procedures or attend a court hearing. Although assisted
by the warders and an inmate nurse and allowed to take short breaks
in the wheelchair between the stair flights, the applicant had to
rely largely on his weak legs and extremely poor eyesight to
negotiate the hazardous flights of stairs, clearly inadequate to
address the needs of wheelchair-bound inmates. These forced walks
undoubtedly inflicted unnecessary pain on the applicant and subjected
him to an unreasonable risk of serious health damage. In these
circumstances, the Court does not find it surprising that he refused
to add up yet another trip, to the recreation yard, to his daily
routine of climbing the stairs. As a result he did not have an
outdoor recreation walk during the entire period of his detention in
facility no. 5, save for two occasions in May 2010, remaining
confined within the walls of the detention facility twenty-four hours
a day. In this respect, the Court reiterates that it has already had
an occasion to find Article 3 violated by the lack of opportunity for
outdoor exercise (see Poltoratskiy v. Ukraine, no.
38812/97, § 146, ECHR 2003 V). However, the Court finds it
more striking that the applicant was so frustrated, exhausted and
unable to cope with the stress and humiliation resulting from the
absence of a lift in the facility that he occasionally refused to
leave his cell to take life-supporting haemodialysis or to submit to
medical examinations.
Although the Government argued that the suffering the
applicant could have endured through the inaccessibility issue did
not rise to the level of an Article 3 violation, the Court cannot
agree. It observes that while the absence of a lift and the resulting
necessity to take four flights of stairs at least once a day,
standing alone, will not be sufficient to run afoul of Article 3
requirements, applied to an inmate of the applicant’s state of
health they impose an atypical and significant hardship within the
context of the detention facility. The sheer frequency with which the
applicant had to use the stairs, not to mention the physical
suffering, as well as the psychological burden that he experienced in
attempting to reach the inaccessible facilities, indicates that he
has been subjected to treatment running contrary to the requirements
of Article 3 of the Convention, having been incarcerated under
conditions posing a substantial risk of serious harm to his health
and having been denied the minimal civilized measure of life’s
necessities.
There is no evidence in this case of any positive
intention to humiliate or debase the applicant. However, the Court
cannot overlook the applicant’s claim that the detention
authorities were indifferent to his accessibility needs. The prison
management made no improvements which could have mitigated his access
to the medical, recreational or administrative facilities over time,
although the frequency with which the applicant needed to use the
stairs indicated that the authorities should have taken action to
address his needs. Additionally, given the number of grievances the
applicant appears to have lodged regarding the conditions of his
detention, the Court finds it undisputable that the authorities were
aware of the applicant’s unusual distress. While reiterating
its constant jurisprudence, according to which
a State has a sufficient margin of discretion in defining the manner
in which it fulfils its obligation to protect the physical
well-being of persons deprived of their liberty,
inter alia,
by choosing an appropriate facility, taking into account “the
practical demands of imprisonment”, as long as the standard of
chosen care is “compatible with the human dignity” of a
detainee (see Aleksanyan v. Russia, no. 46468/06,
§ 140, 22 December 2008, and most
recently, Vasyukov
v. Russia, no. 2974/05, § 79,
5 April 2011), the Court finds it
inexplicable that the Russian authorities persistently dismissed the
applicant’s pleas for a transfer to another detention facility
or a prison hospital, given, and it was not disputed by the
Government, that detention facility no. 5 was initially unprepared to
accommodate an inmate of the applicant’s needs, lacking the
medical licence, equipment and personnel to provide him with
the required medical care, including haemodialysis. Although the
necessary medical equipment was subsequently installed in the
facility and the applicant started receiving treatment from licensed
medical staff from outside hospitals, it did not alleviate his
situation as regards his access to the facilities. The
Court reiterates the Government’s argument that accommodation
suitable for prisoners in the applicant’s unfortunate condition
did not exist in the Krasnodar Region at the time. However, it is not
the Krasnodar Region but the Russian Federation which is the Party
responsible under the Convention for ensuring compliance with its
standards. The Court is concerned to find that, despite a number of
requests to that effect from the applicant, no attempt was made to
find a place of detention appropriate for the applicant in another
region of Russia (see, for similar reasoning, Mathew v. the
Netherlands, no. 24919/03, §§ 204 and 215, ECHR
2005 IX).
In
this regard, the Court also reiterates the second group of the
applicant’s complaints, containing allegations of inadequate
sanitary and hygienic conditions in the facility. Although the
standard of medical care is another matter for the Court to examine,
it does not lose sight of the fact that the majority of the medical
examinations and procedures, and numerous operations, the applicant
underwent were performed in the conditions of an ordinary room which,
as the Government pointed out, had been transformed into a special
unit when the medical equipment from the Centre had been installed
there.
In summary, the Court finds that
the domestic authorities failed to handle the applicant in a safe and
appropriate manner consistent with his disability, denying him
effective access to the medical facilities, outdoor exercise and
fresh air. The conditions of detention the applicant had to endure
must have caused him unnecessary and avoidable mental and physical
suffering, diminishing his human dignity and amounting to inhuman
treatment. Therefore, there has been a violation of Article 3 of
the Convention.
Having reached the above conclusion, the Court does
not need to examine additionally whether there has been a violation
of Article 3 on account of the medical care provided to the applicant
in that facility (see Aleksanyan, cited above, § 220, and
Isayev and Others v. Russia, no. 43368/04,
§ 135, 21 June 2011).
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained under Article 5 § 1 (c) that his detention
from 24 to 28 January 2010 had been unlawful. The relevant parts of
Article 5 provide:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so ...”
A. Submissions by the parties
The
Government argued that the applicant’s detention had been
lawful, complying with the requirements of Article 5 § 1 (c) of
the Convention. The District Court’s decision of 21 January
2010 constituted the lawful basis for the detention until 28 January
2010, when the District Court had clarified the previous order by
setting a time-limit.
The
applicant submitted that his detention had lacked any legal basis.
The District Court’s decision of 21 January 2010 was issued in
response to his lawyer’s application for his release. It was
not until 28 January 2010 that the District Court issued the
formal order extending his detention until 11 July 2010.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and that it
is not inadmissible on any other grounds. The complaint must
therefore be declared admissible.
2. Merits
(a) General principles
The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. However, the
“lawfulness” of detention under domestic law is not
always the decisive element. The Court must in addition be satisfied
that detention during the period under consideration was compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion.
The
Court must moreover ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court stresses
that, where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty be satisfied.
It is therefore essential that the conditions for deprivation of
liberty under domestic law be clearly defined and that the law itself
be foreseeable in its application, so that it meets the standard of
“lawfulness” set by the Convention, a standard which
requires that all law be sufficiently precise to allow the person –
if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see Ječius v. Lithuania, no.
34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III).
(b) Application of the general principles
to the present case
The
Court reiterates that on 24 January 2010 the period of the
applicant’s detention authorised by the order of the
Oktyabrskiy District Court on 20 November 2010 expired. A further
decision on his detention was taken on 28 January 2010 when the
District Court extended it until 11 July 2010.
According
to the applicant, between 24 and 28 January 2010 there was no
decision authorising his detention. The Government argued that the
applicant’s detention during that period was based on the
District Court’s decision of 21 January 2010 (see paragraph 40
above) which had a legal effect equivalent to that of a formal
extension order and, therefore, constituted sufficient legal basis
for his detention.
The
Court notes that on 21 January 2010 the District Court ruled on the
application for release lodged by the applicant’s lawyers. It
dismissed the application on the ground that the applicant was
receiving the necessary medical attention in detention and ordered
that he remain in custody. The Court observes that the application
for release filed by the applicant did not exempt the domestic
authorities from the obligation to authorise his detention “in
accordance with a procedure prescribed by law” by issuing a
formal detention order, as provided by Article 5 § 1. Finding
otherwise would place on the applicant, rather than the authorities,
the burden to ensure a lawful basis for his continued detention (see,
among other authorities, Melnikova v. Russia, no. 24552/02, §
62, 21 June 2007; Shukhardin v. Russia, no. 65734/01,
§ 81, 28 June 2007; and Matyush v. Russia,
no. 14850/03, § 63, 9 December 2008). The Court is not convinced
that the decision of 21 January 2010 could be construed as a formal
order authorising the applicant’s detention until 28 January
2010.
However,
even proceeding on the assumption that the Government’s
argument to that effect is valid, the Court cannot overlook the fact
that the decision of 21 January 2010 did not give any reasons for the
necessity to continue keeping the applicant in custody. It also
failed to set a time-limit for the continued detention or for a
periodic review of the preventive measure. The Court has already
found violations of Article 5 § 1 (c) of the
Convention in a number of cases against Russia concerning a similar
set of facts (see, for example, Solovyev v. Russia,
no. 2708/02, §§ 95-100, 24 May 2007; Shukhardin,
cited above, §§ 65-70; and Belov v. Russia,
no. 22053/02, §§ 80-83, 3 July 2008). In particular,
the Court has held that the absence of any grounds given by judicial
authorities in their decisions authorising detention for an
unspecified period of time is incompatible with the principle of
protection from arbitrariness enshrined in Article 5 § 1 (see
also Nakhmanovich v. Russia, no. 55669/00, §§
70-71, 2 March 2006, and Stašaitis v. Lithuania,
no. 47679/99, § 67, 21 March 2002). Permitting a
prisoner to languish in detention without a judicial decision based
on concrete grounds and without setting a specific time-limit would
be tantamount to overriding Article 5, a provision which makes
detention an exceptional departure from the right to liberty and one
that is only permissible in exhaustively enumerated and strictly
defined cases (see Khudoyorov v. Russia, no. 6847/02, §
142, ECHR 2005-X).
The
Court sees no reason to reach a different conclusion in the present
case. It considers that the order of 21 January 2010 did not comply
with the requirements of clarity, foreseeability and protection from
arbitrariness, which together constitute the essential elements of
the “lawfulness” of detention within the meaning of
Article 5 § 1.
The Court therefore considers that there was a
violation of Article 5 § 1 (c) of the Convention on
account of the applicant’s detention from 24 to 28 January
2010.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained of a violation of his right to trial within a
reasonable time and alleged that the orders for his detention had not
been founded on sufficient reasons. He relied on Article 5 § 3
of the Convention, which provides:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
A. Submissions by the parties
The
Government argued that the applicant’s arrest was warranted by
a reasonable suspicion that he had organised an assault in the
context of a financial conflict that had existed between him and the
victims. The courts’ decisions to remand the applicant in
custody and subsequently to extend his detention were based on valid
considerations, such as the applicant’s personal history, his
criminal record, his ties to the criminal underworld, his financial
resources, and so on. The courts correctly concluded that the
applicant was liable to reoffend, abscond and obstruct the
investigation. In the Government’s opinion, the Russian courts
carried out an effective exercise of balancing the applicant’s
right to liberty and the interests of justice, having also carefully
studied his medical history and having been satisfied that he was
receiving the necessary medical assistance in detention.
The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and that it
is not inadmissible on any other grounds. The complaint must
therefore be declared admissible.
2. Merits
(a) General principles
The
Court reiterates that the persistence of reasonable suspicion that
the person arrested has committed an offence is a condition sine
qua non for the lawfulness of his or her continued detention.
However, after a certain lapse of time it no longer suffices. In such
cases, the Court must establish whether the other grounds given by
the judicial authorities continued to justify the deprivation of
liberty. Where such grounds are found to have been “relevant”
and “sufficient”, the Court must also ascertain whether
the competent national authorities displayed “special
diligence” in the conduct of the proceedings (see Labita v.
Italy [GC], no. 26772/95, §§ 152 and 153,
ECHR 2000-IV).
The presumption is in favour of release. As the Court
has consistently held, the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until his conviction, the accused
must be presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continued detention ceases to be reasonable. A person charged
with an offence must always be released pending trial unless the
State can show that there are “relevant and sufficient”
reasons to justify his or her continued detention (see, among other
authorities, Castravet v. Moldova, no. 23393/05, §§ 30
and 32, 13 March 2007; McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006-...; Jabłoński v.
Poland, no. 33492/96, § 83, 21 December 2000; and
Neumeister v. Austria, 27 June 1968, § 4,
Series A no. 8). Article 5 § 3 of the Convention
cannot be seen as unconditionally authorising detention provided that
it lasts no longer than a certain period. Justification for any
period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov v. Bulgaria,
no. 38822/97, § 66, ECHR 2003-I).
It
is incumbent on the domestic authorities to establish the existence
of specific facts relevant to the grounds for continued detention.
Shifting the burden of proof to the detained person in such matters
is tantamount to overturning the rule of Article 5 of the Convention,
a provision which makes detention an exceptional departure from the
right to liberty and one that is only permissible in exhaustively
enumerated and strictly defined cases (see Rokhlina v.
Russia, no. 54071/00, § 67, 7 April 2005, and
Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July
2001). The national judicial authorities must examine all the facts
arguing for or against the existence of a genuine requirement of
public interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty, and must set them out in their decisions
dismissing the applications for release. It is not the Court’s
task to establish such facts and take the place of the national
authorities which ruled on the applicant’s detention. It is
essentially on the basis of the reasons given in the domestic courts’
decisions and of the established facts mentioned by the applicant in
his appeals that the Court is called upon to decide whether or not
there has been a violation of Article 5 § 3 of the Convention
(see Korchuganova v. Russia, no. 75039/01, § 72,
8 June 2006; Ilijkov, cited above, § 86; and Labita,
cited above, § 152).
(b) Application to the present case
The
applicant was arrested on 12 February 2009. He was convicted by the
trial court on 18 May 2010. The period to be taken into consideration
therefore lasted for slightly more than fifteen months.
It
is not disputed by the parties that the applicant’s detention
was initially warranted by a reasonable suspicion that he had
organised an aggravated assault causing serious injuries to four
individuals and one death. It remains to be ascertained whether the
judicial authorities gave “relevant” and “sufficient”
grounds to justify his continued detention and whether they displayed
“special diligence” in the conduct of the proceedings.
The
gravity of the charges was one of the factors for the assessment of
the applicant’s potential to abscond, reoffend or obstruct the
course of justice. However, the Court has repeatedly held that,
although the severity of the sentence faced is a relevant element in
the assessment of the risk of an accused absconding or reoffending,
the need to continue the deprivation of liberty cannot be assessed
from a purely abstract point of view, taking into consideration only
the gravity of the offence. Nor can continuation of the detention be
used to anticipate a custodial sentence (see Letellier v. France,
26 June 1991, § 51, Series A no. 207; see also Panchenko
v. Russia, no. 45100/98, § 102, 8 February
2005; Goral v. Poland, no. 38654/97, § 68, 30
October 2003; and Ilijkov, cited above, § 81). The
Court will therefore examine whether the other grounds referred to by
the domestic courts were sufficient to justify the applicant’s
detention.
The
judicial authorities relied, in addition to the gravity of the
charges against the applicant, on information relating to his
behaviour. In particular, they found that his criminal record and
alleged authority in the criminal underworld made him particularly
prone to reoffend, abscond or interfere with the course of the
criminal proceedings. The authorities considered that the applicant’s
ties to the criminal environment would give him an opportunity to
influence witnesses and to destroy evidence if released. In these
circumstances the Court is prepared to accept that at the initial
stage of the proceedings the courts could have validly presumed the
existence of a risk that, if released, the applicant might abscond,
reoffend or interfere with the proceedings given the nature of his
criminal activities (see, for similar reasoning, Bąk v.
Poland, no. 7870/04, § 62, 16 January 2007).
It
remains to be ascertained whether that risk persisted throughout the
entire period of detention. The Court notes in this respect that
after the renal transplant failure in April 2009 the applicant was
almost daily in need of hours-long haemodialysis sessions. His
restricted ability to move, as well as the necessity for him to
remain under constant medical supervision considerably reduced the
risk of his absconding. However, the domestic courts failed to take
the changed circumstances into account and continued to extend the
applicant’s detention without any assessment of whether,
considering the applicant’s medical condition, that risk
remained real. In the Court’s opinion, particularly after April
2009 the risk of his absconding was mitigated by his medical
condition, so that it was no longer sufficient to outweigh his right
to a trial within a reasonable time or release pending trial.
However,
as to the persistence of the risk of collusion, the Court does not
accept that the change in the applicant’s medical condition in
April 2009 negated that risk to the extent that it could no longer
warrant the applicant’s detention. The decisions to extend the
detention pending pre-trial investigation and trial underlined the
fact that the fears of collusion were founded on the applicant’s
particular status in the criminal underworld. The judicial
authorities considered the risk of pressure being brought to bear on
witnesses or of the obstruction of the proceedings by other unlawful
means to be so real that they took the decision to hold the trial in
camera. In this context the Court observes that the danger of
perversion of justice must be assessed with reference to a number of
other relevant factors. In particular, regard must be had to the
character of the person involved, his morals, his assets, and so on
(see W. v. Switzerland, 26 January 1993, Series A no. 254 A).
Having said that, the Court would emphasise that there is a general
rule that the domestic courts, in particular the trial court, are
better placed to examine all the circumstances of the case and take
all the necessary decisions, including those in respect of pre-trial
detention. The Court may intervene only in situations where the
rights and liberties guaranteed under the Convention have been
infringed (see Isayev and Others v. Russia, no. 43368/04,
§ 148, 21 June 2011).
The Court believes that the authorities were faced
with the difficult task of determining the facts and the degree of
alleged responsibility of each of the defendants who had been charged
with taking part in an organised criminal act. In these
circumstances, the Court also accepts that the need to obtain
voluminous evidence from many sources, coupled with the existence of
the general risk flowing from the organised nature of the applicant’s
alleged criminal activities, constituted relevant and sufficient
grounds for extending his detention for the time necessary to
complete the investigation, to draw up the bill of indictment and to
hear evidence from the accused and witnesses in court. The Court does
not underestimate the fact that the domestic
authorities had to take statements from witnesses in a manner which
had to exclude any doubt as to their veracity. The Court thus
concludes that, in the special circumstances of the case, the risk of
the applicant interfering with the course of justice actually existed
and justified holding him in custody for the entire relevant period
(see, for similar reasoning, Celejewski v. Poland,
no. 17584/04, 4 May 2006, and Łaszkiewicz v. Poland, no.
28481/03, §§ 59-60, 15 January 2008).
The
Court lastly observes that the proceedings were of considerable
complexity, regard being had to the number of defendants, the
extensive evidentiary proceedings and the implementation of special
measures required in cases concerning organised crime. Nevertheless,
the hearings in the applicant’s case were held regularly and at
short intervals. The courts also took proper measures to ensure the
speedy progress of the proceedings. The Court therefore concludes
that the national authorities displayed special diligence in the
conduct of the proceedings. The length of the investigation and of
the trial was justified by the complexity of the case. It should not
be overlooked that, while an accused person in detention is entitled
to have his case given priority and conducted with particular
expedition, this must not stand in the way of the efforts of the
judges to clarify fully the facts in issue, to provide both the
defence and the prosecution with all the necessary facilities for
putting forward their evidence and stating their case and to give
judgment only after careful reflection on whether the offences were
in fact committed and on the sentence to be imposed (see, for similar
reasoning, Bąk, cited above, § 64) .
Having regard to the foregoing, the Court considers
that there has been no violation of Article 5 § 3 of the
Convention.
IV. 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 claimed 50,000 euros (EUR) in respect
of non-pecuniary damage.
The
Government submitted that the sum claimed was excessive and lacked
any substantiation.
The
Court notes that it has found violations of the two Convention
provisions in the present case. In these circumstances, it considers
that the applicant’s suffering and frustration cannot be
compensated for by the mere finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant EUR
15,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The
applicant did not seek reimbursement of costs and expenses and this
is not a matter which the Court is required to examine of its own
motion (see Motière v. France, no. 39615/98, § 26,
5 December 2000).
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
Declares the application admissible;
Holds that there has been a violation of Article
3 of the Convention on account of the conditions of the applicant’s
detention;
Holds that there is no need to examine the
complaint under Article 3 of the Convention concerning the quality of
medical care;
Holds that there has been a violation of Article
5 § 1 of the Convention on account of the applicant’s
detention from 24 to 28 January 2010;
Holds that there has been no violation of
Article 5 § 3 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 15,000
(fifteen thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
the 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 amounts 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 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
