European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF YANKOVSKIY v. RUSSIA

 

(Application no. 24051/11)

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

25 July 2017

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Yankovskiy v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Luis López Guerra, President,
          Dmitry Dedov,
          Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 4 July 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 24051/11) 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 Vyacheslav Mikhaylovich Yankovskiy (“the applicant”), on 8 April 2011.

2.  The applicant was initially represented by Ms T. Klykova, a lawyer practising in St Petersburg, and subsequently by Mr W. Bowring, Mr P. Leach, Ms J. Evans, Ms J. Gordon, Ms O. Tseiytlina, Mr F. Tishayev, Ms T. Chernikova, Ms A. Razhikova, and Ms A. Sobko, lawyers at the European Human Rights Advocacy Centre and the Memorial Human Rights Centre, based in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  The applicant alleged, in particular, that he had not received adequate medical care in detention, that his continuous detention on remand was not compatible with his state of health, that his detention on remand had been excessively long, that the examination of his appeals against custody orders had not been speedy, and that he had had no effective domestic remedies to complain about the quality of medical care in prison.

4.  On 27 May 2011 the Court granted the application priority under Rule 41 of the Rules of Court.

5.  On 30 August 2011 the application was communicated to the Government.

 

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1966 and lives in St Petersburg.

      A.  The applicant’s detention pending investigation

1.  Arrest

7.  On 5 April 2010 the applicant was arrested on suspicion of having planned and carried out a murder and of having injured two persons. Four days later he was charged with murder and attempted murder committed within an organised criminal group. The Leninskiy District Court of St Petersburg (“the District Court”) authorised his pre-trial detention for two months.

2.  Extension order of 3 June 2010

8.  On 3 June 2010 the District Court examined an application by the investigating authorities to extend the applicant’s detention. They relied on the seriousness of the charges, the applicant’s de facto residence not being at his registered address, and the potential risk of intimidation of witnesses or victims, and the risk of obstruction of justice and reoffending. The defence argued that the applicant had no criminal record, that he lived at a known address, had a family with two minor children, and that he suffered from severe diabetes. Having been fully satisfied with the prosecution’s arguments, the District Court extended the detention until 15 August 2010.

9.  On 1 July 2010 the St Petersburg City Court (“the City Court”) upheld the decision on appeal.

3.  Extension order of 12 August 2010

10.  On 12 August 2010 the District Court extended the applicant’s detention until 30 August 2010 citing the seriousness of the charges and the fact that the investigation had not yet been completed. The court found that if released the applicant could influence his co-accused or the victims. With reference to the medical report of 15 July 2010 (see paragraph 41 below) the court noted that the state of health of the accused was compatible with further detention on remand. The decision contained the following phrase:

“The investigation has proved [the applicant’s] guilt in that crime”

11.  The defence did not appeal against the extension order.

4.  Extension order of 27 August 2010

12.  On 27 August 2010 the District Court ruled that the applicant should remain in detention until 30 November 2010. The court endorsed the reasoning of the decision of 12 August 2010 and noted that there were still certain investigative actions to be taken. In particular, the authorities had to obtain an expert report, to investigate the applicant’s alleged involvement in five more criminal incidents and to finish examining evidence.

13.  On 23 September 2010 the City Court upheld the order on appeal.

5.  Extension order of 29 November 2010

14.  On 29 November 2010 the District Court examined another application for extension of the applicant’s detention. The same judge as at the hearing of 12 August 2010 presided. Relying on the wording of the court order of that date (see paragraph 10 above) the defence challenged the judge, alleging that he was biased.

15.  The District Court dismissed that application, having found that the hearing on 12 August 2010 and the ensuing decision had not concerned the determination of the applicant’s guilt and that there was no evidence of the judge’s partiality.

16.  The court extended the applicant’s detention until 28 February 2011, repeating its earlier reasoning. It also concluded that his state of health was “close to satisfactory” and that he could be transferred to a prison hospital should his health worsen.

17.  On 30 November 2010 the applicant appealed against both the extension order and the court’s decision regarding the impartiality of the judge. On 15 December 2010 he amended his appeal.

18.  The next day the applicant’s lawyer was informed that the appeal hearing had been listed for 23 December 2010. Citing his busy schedule, the lawyer asked the court to adjourn the hearing. The court allowed the request and set the hearing for 20 January 2011.

19.  On 20 January 2011 the City Court discovered that a copy of the decision of 29 November 2010 dismissing the application for a change in the composition of the District Court had not been served on the defence, which therefore had had no opportunity to challenge it. The case was remitted to the District Court.

20.  A week later the District Court provided the defence with a copy of the impugned decision.

21.  On 17 and 24 February 2011 the City Court postponed hearings owing to the applicant’s inability to participate for health reasons.

22.  At the hearing on 3 March 2011 the applicant informed the City Court of his wish to change lawyer. The hearing was adjourned again.

23.  On 10 March 2011 the City Court upheld the extension order and rejected the applicant’s challenge to the District Court’s judge as unfounded.

6.  Application for release on medical grounds and the extension order of 24 February 2011

24.  On 24 February 2011 the District Court extended the applicant’s detention until 5 April 2011, and dismissed a prior application for early release on medical grounds. The court decided that he was receiving adequate medical care and that the circumstances of the case did not call for his release.

25.  On 28 February 2011 the applicant appealed against the extension order with reference to his frail health and the lack of adequate medical care. His appeal reached the court on 10 March 2011.

26.  The City Court upheld the extension order on 31 March 2011.

7.  Extension order of 5 April 2011

27.  On 5 April 2011 the City Court held another detention hearing. The applicant and his lawyer were absent. According to a medical certificate, the applicant was unable to appear owing to ongoing inpatient treatment. A written statement from the investigator said that the applicant’s counsel had been informed of the hearing by telephone on 1 April 2010. Noting the counsel’s absence, the City Court appointed a new lawyer for the defence. The appointed lawyer objected to the extension of the applicant’s detention, referring to the latter’s family situation, permanent residence at a known address and his poor health.

28.  The City Court extended the applicant’s detention until 30 May 2011. In addition to the usual reference to the seriousness of the charges, it noted the complexity of the case and the need for the investigating authorities to look into recently obtained evidence suggesting that two more people had been involved in the criminal offences. The court made a detailed list of the investigative steps taken since the most recent detention order, and declared reasonable the length of the investigation. The court also found that the applicant could not be released on medical grounds given the absence of a medical report assessing the compatibility of the applicant’s health with prolonged detention.

29.  On 7 April 2011 the defence appealed against the extension. On 21 April and 5 May 2011 a supplement to the appeal was submitted by the applicant’s lawyer, who, referring to the call records on her mobile telephone, argued that the investigator had not informed her of the hearing on 5 April 2011.

30.  On 25 May 2011 the Supreme Court held the appeal hearing in the absence of the applicant - who was still receiving inpatient treatment - and his counsel, who asked the court to examine the issue in his absence. The applicant was represented by court-appointed counsel, who supported the arguments put forward in the statement of appeal statement.

31.  The Supreme Court upheld the extension order. As it was satisfied with the investigator’s statements about the telephone conversation with the applicant’s lawyer, the court dismissed the argument that the lawyer had not been notified of the hearing on 5 April 2011.

8.  Extension order of 30 May 2011

32.  On 30 May 2011 the St Petersburg City Court extended the applicant’s detention for three months. The court reiterated that he had been charged with multiple counts of very serious crimes and that the case was very complex. It also cited the applicant’s liability to abscond. As regards his state of health, the court found that in the absence of an expert report release was not warranted.

33.  The applicant appealed. On 1 and 8 June 2011 his lawyer submitted supplements to the statement of appeal.

34.  The appellate hearing was initially scheduled for 27 June 2011, but then adjourned until 13 July 2011 owing to the applicant’s ongoing medical treatment. On the latter date the Supreme Court upheld the detention order.

9.  Further detention and release

35.  A number of additional orders followed, extending the detention until 30 November 2011. The extensions were authorised in view of the seriousness of the charges and the necessity for the applicant to study the case file. The applicant was found fit to stay in detention because the requisite treatment was available in prison. Other measures of restraint could not, in the court’s opinion, secure his appearance before the investigating authorities or his law abidance.

36.  On 30 November 2011 the District Court refused to extend the applicant’s detention. It found that he was living in St Petersburg at a known address, and that he was employed, and had two minor children. There was no evidence confirming the risk of witness intimidation or reoffending. The court also took into account the applicant’s poor health and his unequivocal intent to cooperate with the prosecution. It appears that on the same day the applicant was released. The City Court upheld that decision on 22 December 2011.

37.  There is no information about further developments in the criminal proceedings.

B.  The applicant’s medical history

38.  Since 1989 the applicant had been suffering from insulin-dependent type-one diabetes. In 2008 he was certified as having a second-degree disability.

39.  After the arrest in April 2010 he was taken to the medical unit of remand prison no. IZ-47/1 in St Petersburg. During the first months of detention his treatment was overseen by a prison endocrinologist.

40.  On 15 June 2010, at the request of the applicant’s wife, a panel of experts examined his medical condition. They confirmed the diagnosis of type-one-diabetes and frequent instances of ketoacidosis complicated by concomitant diseases. The experts observed that his condition was aggravated by chronic pancreatitis and called for his constant supervision by an endocrinologist and a gastroenterologist of a specialised medical institution licensed to provide those types of medical assistance. The applicant needed a specific diet and insulin injections. A specialist was needed to monitor and correct the applicant’s insulin level. A failure to comply with those recommendations could threaten the applicant’s life. The experts further concluded that the remand prison medical unit was unable to provide adequate medical assistance.

41.  At the investigator’s request, on 15 July 2010 a medical panel issued a report concluding that the applicant was fit to stay in the remand prison if he received specific medical care comprising: monitoring of blood sugar levels throughout the day; administration of the requisite medicines and adherence to a specific diet; insulin injections; and “active supervision by an endocrinologist” in order to ensure the correct insulin therapy. The experts noted that “inappropriate” insulin intake could lead to severe complications.

42.  In August 2010 the prison endocrinologist was discharged from the medical unit. A resident general practitioner started supervising the applicant’s treatment. According to the applicant, no checks of his insulin level were carried out in the medical unit. Medical documents show that he developed face and feet oedemas. On that account he was sent to Gaaza Prison Hospital in St Petersburg on 13 October 2010.

43.  License no. FS 78-01-001560 of 23 April 2009 indicates that Gaaza Prison Hospital was not authorised to provide endocrinological medical services. It did not employ an endocrinologist.

44.  On 26 October 2010 the applicant was seen by a civilian endocrinologist. The applicant’s wife paid for the visit. The doctor noted that the patient was suffering from severe diabetes complicated by several concomitant conditions and that he needed “dynamic supervision by an endocrinologist”.

45.  Three days later the applicant was transferred from Gaaza Prison Hospital back to the medical unit in the remand prison.

46.  On 23 November 2010 and 21 February 2011 a medical board carried out an additional expert examination and repeated its earlier conclusion made in the report on 15 July 2010.

47.  According to the applicant, the medical unit staff changed his insulin regimen because the prescribed medication was not available. No consolations with an endocrinologist preceded that decision. As a result his blood sugar level increased significantly.

48.  In April and May 2011 he underwent short courses of inpatient treatment in Gaaza Prison Hospital.

49.  On 15 June 2011 he was taken by ambulance to Mariyinskaya City Hospital in St Petersburg and was admitted to the emergency department in view of his serious medical condition. He was diagnosed with type-one severe diabetes; diabetic ketoacidosis; non-proliferative diabetic retinopathy; cataracts in both eyes; diabetic angiopathy of both feet; encephalopathy of mixed origin; diabetic sensory polyneuropathy; and diabetic nephropathy. A special medical board stated that those illnesses were not on the list of medical conditions precluding detention; accordingly, the applicant was not eligible for release on medical grounds. The board also called for “dynamic supervision” of the applicant’s treatment by an endocrinologist.

50.  Between June and November 2011 the applicant was moved several times between the medical unit in the remand prison and Gaaza Prison Hospital. According to the Government, he was seen once, on 28 June 2011, by a civilian endocrinologist.

51.  On 5 April 2012 at the request of the applicant’s lawyer three medical experts prepared a report on the quality of his treatment in detention. It addressed the following questions:

“1.  What does the necessity of dynamic medical supervision by an endocrinologist’ suggest?

2.  Does [the applicant] have an illness ... calling for continuous inpatient treatment in a specialised medical institution?

...

4. How did the absence of ‘dynamic medical supervision by an endocrinologist’ between 5 April 2010 and 30 November 2011 affect [the applicant’s] health? ...”

The doctors came to the following conclusions:

“1.  Dynamic medical supervision by an endocrinologist involves regular medical tests and contact with a doctor ... In a case of stable diabetes with no changes in the insulin level, a medical examination by an endocrinologist must be performed once a month ... [However,] if important changes are being introduced into a patient’s insulin regimen, he or she must have a daily consultation by an endocrinologist ... until the target glucose level is achieved and there is no risk of hypoglycaemia...

Irregular examinations of [the applicant] did not constitute ‘dynamic supervision’, as their frequency was clearly insufficient for the assessment of the patient’s well-being in its dynamic ... or for the adjustment of his treatment.

2.  ... The seriousness of [the applicant’s] diabetes ... shows that inpatient treatment in a specialised medical facility was required.

...

4.  ... The lack of ‘dynamic medical supervision by an endocrinologist’ between 5 April 2010 and 30 November 2011 resulted in the deterioration of [the applicant’s] health. Developed vascular disease (vascular angiopathy of the lower extremities) and encephalopathy, an irreversible brain damage ... were signs of his worsening health.

In the absence of dynamic medical supervision, improper adjustment of the medical treatment led to an increased risk of ketoacidosic/hypoglycemic comas...”

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

52.  The relevant provisions of domestic and international law on the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015).

53.  The provisions of domestic law establishing the legal avenues for complaints about the quality of medical services are cited in the following judgments: Patranin v. Russia (no. 12983/14, §§ 86-88, 23 July 2015); Reshetnyak v. Russia (no. 56027/10, §§ 35-46, 8 January 2013); Dirdizov v. Russia (no. 41461/10, §§ 47-61, 27 November 2012); and Koryak v. Russia (no. 24677/10, §§ 46-57, 13 November 2012).

54.  For a summary of the relevant domestic law provisions governing the conditions and length of pre-trial detention, see the cases of Dolgova v. Russia (no. 11886/05, §§ 26-31, 2 March 2006) and Lind v. Russia (no. 25664/05, §§ 47-52, 6 December 2007).

55.  The Russian legal regulations regarding proceedings on the lawfulness of the detention are laid down in the judgment of Chuprikov v. Russia (no. 17504/07, §§ 42-45, 12 June 2014).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

56.  The applicant complained that the authorities had failed to provide him with adequate medical care and that his state of health was not compatible with his continuous detention on remand. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Submissions by the parties

57.  The Government argued that the applicant had been provided with adequate treatment. They stated that he had been under “dynamic monitoring” by various doctors, that he had regularly undergone the necessary medical tests and had received medical treatment in full compliance with the doctors’ prescriptions.

58.  The applicant maintained his claims. He submitted that his treatment had been palpably deficient, firstly because neither the medical unit in the remand prison nor Gaaza Prison Hospital had been licensed to provide specialised endocrine care; and secondly because there had been no regular supervision of his condition by an endocrinologist. To support his claim he submitted a medical report of 5 April 2012 assessing the quality of the treatment in detention (see paragraph 51 above).

B.  The Court’s assessment

1.  Admissibility

59.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

(a)  General principles

60.  The applicable general principles were summarised in the cases of Blokhin v. Russia ([GC] no. 47152/06, §§ 135-40, ECHR 2016); Wenner v. Germany, (no. 62303/13, §§ 54-58, 1 September 2016); and Ivko (cited above, §§ 91-95).

(b)  Application of the general principles to the present case

61.  The Court observes that the applicant had several serious medical problems, including type-one diabetes, which progressed during the course of his detention (see paragraphs 40, 47 and 49 above). Although nothing suggests that his illnesses were in principle incompatible with detention, it is clear that they required appropriate medical care on a regular, systematic and comprehensive basis.

62.  The Court notes the applicant’s arguments supported by the medical opinion of 5 April 2012 that he had not been regularly seen by an endocrinologist and that he had received medical treatment in medical facilities unequipped to treat his condition.

i.  Medical supervision by an endocrinologist

63.  Turning to the first argument, the Court notes that on a number of occasions since 15 June 2010 various medical experts and doctors had consistently drawn the authorities’ attention to the necessity to have the applicant’s condition closely monitored by an endocrinologist. However, as is apparent from the submitted documents and the medical opinion of 5 April 2012, regular examinations by a medical specialist were available to the applicant.

64.  The Court has previously held that it was essential for a prisoner suffering from a serious illness to undergo an adequate assessment of his or her state of health, by a specialist in the disease in question, in order to be provided with appropriate treatment (see, mutatis mutandis, Testa v. Croatia, no. 20877/04, §§ 51-52, 12 July 2007, and Keenan v. the United Kingdom, no. 27229/95, §§ 115-16, ECHR 2001-III).

65.  Given the seriousness of the applicant’s condition, the continuous deterioration of his health, and the risks involved (see paragraphs 40 and 51 above), the Court considers that the absence of appropriate monitoring and supervision in respect of his medical treatment was a serious failure on the part of the authorities.

ii.  Appropriateness of the medical facilities

66.  Turning to the second argument, the Court notes that it is not disputed by the Government that neither the medical unit in the remand prison nor Gaaza Prison Hospital had been licensed to provide endocrinological care. That implies that these facilities were unequipped to afford the applicant the related health-care services vitally needed by him.

67.  The Court has already held that the authorities must show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Jeladze v. Georgia, no. 1871/08, § 42, 18 December 2012, and Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007).

68.  Accordingly, the Court finds that the necessary conditions were not created for the applicant to follow the prescribed treatment.

iii.  Conclusion

69.  In the light of the foregoing and giving credence to the medical opinion concerning the quality of the medical treatment in detention, submitted by the applicant, the Court concludes that the respondent State failed to comply with its positive obligation under Article 3 of the Convention. There has accordingly been a violation of that provision of the Convention.

70.  In the light of the above finding the Court considers that no separate examination is necessary for the applicant’s complaint under Article 3 of the Convention about the compatibility of his state of health with his continuous detention on remand (see, mutatis mutandis, Piskunov v. Russia, no. 3933/12, § 52, 4 October 2016).

II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

71.  The applicant complained of a violation of his right to trial within a reasonable time. He also alleged that the detention orders had not been based 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

72.  The Government argued that the applicant’s detention had been extended on relevant and sufficient grounds, such as the seriousness of the charges against him and the real risk of his absconding. The domestic courts had dully taken into account his state of health and his family situation.

73.  The applicant stated that the courts had used stereotyped and generic reasons to justify his continued detention.

B.  The Court’s assessment

1.  Admissibility

74.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

(a)  General principles

75.  The applicable general principles have been summarised in Idalov v. Russia ([GC] no. 5826/03, §§ 115-33, 22 May 2012); Zherebin v. Russia (no. 51445/09, §§ 49-54, 24 March 2016); and Suslov v. Russia (no. 2366/07, §§ 84-86, 29 May 2012).

(b)  Application of the general principles to the present case

76.  The period of detention to be taken into consideration in this case started on 5 April 2010, the date of the applicant’s arrest, and ended on 30 November 2011. It amounted almost to a year and eight months. The Court finds that the Russian authorities should have had to put forward very weighty reasons for keeping the applicant in detention for such an extended period of time (see Yaroslav Belousov v. Russia, nos. 2653/13 and 60980/14, § 134, 4 October 2016).

77.  It appears from the applicant’s detention orders and the Government’s observations that the primary reasons for his detention were the seriousness of the charges and the risk of his absconding, reoffending or influencing witnesses and victims.

78.  As regards the reliance on the seriousness of the charges as the decisive element, the Court has repeatedly held that this reason cannot in itself serve to justify long periods of detention. Although the severity of the sentence faced is a relevant element in the assessment of the risk of 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 seriousness of the offence. Nor can a continuation of detention be used to anticipate a custodial sentence (see Fedorenko v. Russia, no. 39602/05, § 67, 20 September 2011).

79.  The risk of absconding was inferred primarily from the seriousness of the charges and the applicant’s presumed fear of receiving a lengthy prison sentence. However, the Court reiterates that such a risk cannot be gauged solely on the basis of the severity of the sentence faced. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Panchenko v. Russia, no. 45100/98, § 106, 8 February 2005).

80.  The Court notes that in addition to citing the seriousness of the charges as one of the reasons for detaining the applicant, the domestic authorities considered that the applicant was liable to abscond in the light of his having been living at the place other than that at which he had been registered (see paragraph 8 above). However, in the decision of 30 November 2011, when ordering the applicant’s release, the District Court interpreted the same circumstances in favour of his release, stating that he had an address in St Petersburg (see paragraph 36 above).

81.  As regards the last major reasons for detention put forward by the domestic courts, namely the risk of reoffending or putting pressure on witnesses and victims, the Court observes that the domestic authorities did not refer to any circumstances warranting that conclusion (see paragraphs 8 and 10 above). In the decision of 30 November 2011 the District Court noted that the courts’ references to these risks had not been underpinned by any particular circumstances (see paragraph 36 above). The Court thus finds that the existence of the risks was not established. Moreover, the judicial decisions authorising the applicant’s detention were silent as to why the alleged risks could not have been offset by any other means of securing the applicant’s appearance at the trial.

82.  Having regard to the above, the Court considers that the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient” or relevant. In these circumstances it will not be necessary for the Court to examine whether the domestic authorities acted with “special diligence”.

83.  There has accordingly been a violation of Article 5 § 3 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

84.  The applicant complained that the District Court had held the detention hearing on 5 April 2011 in the absence of his retained counsel. He also complained that the appeals against the detention orders of 29 November 2010, 24 February, 5 April and 30 May 2011 had not been examined speedily. He relied on Article 5 § 4 of the Convention, which provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A.  Submissions by the parties

85.  The Government submitted that the hearing on 5 April had been held in the absence of the applicant’s lawyer because, although he had been duly informed of the proceedings, he had failed to appear in court. The applicant, however, had been effectively assisted by a court-appointed lawyer. They further stated that the appeal hearings concerning the detention orders had been delayed for reasons imputable to the defence party.

86.  The applicant maintained his complaints.

B.  The Court’s assessment

1.  Admissibility

87.  The Court notes that the applicant’s allegation of the authorities’ failure to inform his lawyer of the date of the hearing on 5 April 2011 is rebutted by documents in the file, specifically the call records showing that the lawyer had been duly summoned (see paragraph 27 above). The Court dismisses the applicant’s challenge to the authenticity of those documents, as the appellate court had confirmed their veracity. The Court sees to no grounds to doubt that conclusion.

88.  The Court further notes that at the hearing on 5 April 2011 the applicant was represented by a court-appointed lawyer who discharged his duties in an appropriate manner, including actively participating in the hearing (see paragraph 27 above). The applicant’s retained counsel had an opportunity to attend the appeal hearing to rectify the alleged shortcomings of the first-instance hearing but refused to do so.

89.  In the light of the above, the Court considers that the impugned proceedings satisfied the requirements of Article 5 § 4 of the Convention. Accordingly, the complaint about the lawyer’s absence is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

90.  As regards the applicant’s allegation concerning the lack of “speedy” examination of his appeals against the detention orders, the Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring it inadmissible have been established. Therefore, it must be declared admissible.

2.  Merits

(a)  General principles

91.  The applicable general principles have been summarised in Kovyazin and Others v. Russia (nos. 13008/13, 60882/12 and 53390/13, § 98, 17 September 2015), Yevgeniy Bogdanov v. Russia (no. 22405/04, §§ 156-57, 26 February 2015) and Bataliny v. Russia (no. 10060/07, §§ 69-71, 23 July 2015).

(b)  Application of the general principles to the present case

92.  As regards the judicial review of the detention order of 29 November 2010, the Court observes that the first appeal hearing, after having been initially adjourned at the request of the applicant’s lawyer, was listed only for 20 January 2011. However, the District Court had failed to serve a copy of its decision of 29 November 2010 on the defence, and the appellate court had to refer the case back to the District Court (see paragraph 19 above). On 17 February 2011 a new appeal hearing was scheduled. The proceedings were then adjourned until 10 March 2011, for various reasons attributable to the defence (see paragraphs 21 and 22 above). Although the defence indeed contributed to the overall length of the proceedings, the Court considers that a delay of twenty-eight days, between 20 January and 17 February 2011, was imputable exclusively to the authorities.

93.  As regards the extension orders of 24 February, 5 April and 30 May 2011, the defence lodged the statement of appeal against them on 10 March, 5 May and 8 June 2011, respectively (see paragraphs 25, 29 and 33 above). The appeal hearings regarding the first two extension orders were held on 31 March and 25 May 2011 (see paragraphs 26 and 30 above). The appeal hearing concerning the latter detention order was scheduled on 27 June 2011 and then adjourned until 13 July 2011. The Court thus concludes that the delays imputable to the authorities amounted at least to twenty-one, twenty and nineteen days.

94.  The Court reiterates that it has previously found a violation of Article 5 § 4 in cases where appeal proceedings lasted seventeen (see Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003), twenty (see Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009), twenty-six (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006), and twenty-seven days (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012), emphasising ‒ in each case ‒ that their entire duration was attributable to the authorities.

95.  Taking into account its established case-law on the issue and the circumstances of the present case the Court finds that the domestic courts failed to comply with the requirement of “speediness” enshrined in Article 5 § 4 of the Convention.

96.  There has therefore been a violation of Article 5 § 4 of the Convention on account of the length of the appeal proceedings in relation to the detention orders of 29 November 2010, 24 February, 5 April and 30 May 2011.

IV.  ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

97.  The applicant complained under Article 6 § 2 of the Convention that the detention order of 12 August 2010 indicated that he had committed a criminal offence, in breach of the presumption of his innocence. The relevant part of Article 6 of the Convention reads as follows:

“2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A.  Submissions by the parties

98.  The Government submitted that the impugned phrase had only described the investigative authorities’ opinion when the latter had argued in favour of extending the applicant’s detention.

99.  The applicant maintained his complaint.

B.  The Court’ s assessment

100.  The Court reiterates the applicant’s argument that the text of the detention order issued by the District Court on 12 August 2010 violated the presumption of his innocence. The Court notes that the applicant did not appeal against the decision of 12 August 2010 (see paragraph 11 above). There is also no indication that the issue was ever raised after August 2010, most probably because, as the applicant submitted, he did not believe in the effectiveness of any such complaints.

101.  Assuming in the applicant’s favour that he had no remedies to exhaust, the Court notes that the period for lodging such a complaint expired six months after the alleged breach of the applicant’s presumption of innocence, that is to say in January 2010. However, the complaint under examination was introduced on 8 April 2011, which is more than six months after the date of the alleged violation. Consequently, the applicant failed to respect the time-limit laid down in Article 35 § 1 of the Convention. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

V.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

102.  The applicant lastly claimed that he had not had at his disposal an effective remedy to complain of a lack of adequate medical assistance, as required under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”

A.  Submissions by the parties

103.  The Government argued that the applicant had had a right to complain of a lack of medical care in detention to the administration of the detention facility, to the prosecutor’s office or to the courts. The administration had not hindered the applicant’s right to complain to the authorities.

104.  The applicant maintained his claims.

B.  The Court’s assessment

1.  Admissibility

105.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

106.  The Court has on many occasions established that there is a lack of effective domestic remedies to complain of the quality of medical treatment in detention (see, among many other authorities, Makshakov v. Russia, no. 52526/07, §§ 86-89, 24 May 2016; Litvinov v. Russia, no. 32863/13, §§ 78-81, 22 March 2016; Kolesnikovich v. Russia, no. 44694/13, §§ 63-66, 22 March 2016; Ivko, cited above, §§ 85-88, Gorbulya v. Russia, no. 31535/09, §§ 56-58, 6 March 2014; Reshetnyak, cited above, §§ 65-73; Dirdizov, cited above, § 75; and Koryak, cited above, §§ 86-93). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government constituted an effective remedy to prevent the alleged violations or stop them from continuing, or to provide the applicant with adequate and sufficient redress for his or her complaints under Article 3 of the Convention.

107.  Having regard to the absence of any new arguments from the Government as regards the existence of effective remedies satisfying the requirements of Article 13 of the Convention in the present case, the Court cannot depart from its well-established case-law on the issue. It therefore finds that the applicant did not have at his disposal an effective domestic remedy for his complaint concerning the quality of the medical care, in breach of Article 13 of the Convention.

VI.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

108.  Lastly, the applicant complained of other aspects of his detention on remand.

109.  Having regard to all the material in its possession, and in so far as those complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that that part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

110.  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

111.  The applicant claimed non-pecuniary damage, asking the Court to determine the appropriate amount of compensation.

112.  The Government submitted that finding a violation would in itself constitute sufficient just satisfaction.

113.  The Court considers that the applicant must have sustained stress and frustration as a result of the violations found. Making its assessment on an equitable basis, the Court awards 19,500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.  Costs and expenses

114.  The applicant claimed EUR 1,500 and 15,000 Russian roubles (RUB - approximately EUR 360) for his representation in domestic proceedings by Ms O. Tseitlina. He also claimed 4,364.67 pounds sterling (GBP - approximately EUR 5,390) for the legal and translation costs, as well as administrative expenses incurred before the Court. The applicant requested that the award be paid into the bank account indicated by his representative.

115.  The Government contested the above claim.

116.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

117.  In the present case, regard being had to the documents in its possession the Court notes that Ms O. Tseitlina was not directly involved in the domestic proceedings related to the violations found. The Court cannot also overlook the fact that the expenses claimed were excessive in comparison with other similar cases recently examined by the Court (see G. v. Russia, no. 42526/07, 21 June 2016, § 127; Sadretdinov v. Russia, no. 17564/06, § 103, 24 May 2016; and Ivko, cited above, § 122, 15 December 2015). Bearing this in mind the Court considers it reasonable to award EUR 4,000 covering costs under all heads to be paid into the bank account indicated by the applicant’s representative.

C.  Default interest

118.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the complaint under Articles 3 of the Convention concerning the lack of adequate medical assistance in detention, the complaint under Article 5 § 3 of the Convention in respect of the absence of sufficient reasoning for the continuous detention on remand, the complaint under Article 5 § 4 of the Convention concerning the lack of speedy judicial review of the detention orders and the complaint under Article 13 of the Convention concerning the absence of domestic remedies to complain of the quality of the medical treatment in detention admissible, and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 3 of the Convention on account of the poor medical care in detention;

 

3.  Holds that no separate examination is necessary for the applicant’s complaint under Article 3 of the Convention concerning the compatibility of his state of health with his continuous detention on remand;

 

4.  Holds that there has been a violation of Article 5 § 3 of the Convention on account of unreasonably long pre-trial detention;

 

5.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of the length of the appeal proceedings in relation to the detention orders of 29 November 2010, 24 February, 5 April and 30 May 2011;

 

6.  Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective remedy to complain of the quality of the medical care in detention;

 

7.  Holds

(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 19,500 (nineteen thousand five hundred euros), in respect of non-pecuniary damage, plus any tax that may be chargeable, to be paid to the applicant;

(ii)  EUR 4,000 (four thousand euros), in respect of costs and expenses, plus any tax that may be chargeable, to be paid to the bank account indicated by the applicant’s representative;

(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;

 

8.  Dismisses the remainder of the applicant’s claim for just satisfaction.

 

Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                    Luis López Guerra
Deputy Registrar                                                                       President