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FIRST
SECTION
CASE OF VALERIY SAMOYLOV v. RUSSIA
(Application
no. 57541/09)
JUDGMENT
STRASBOURG
24
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 Valeriy Samoylov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Anatoly
Kovler,
Elisabeth Steiner,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57541/09) 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 Valeriy Nikolayevich
Samoylov (“the applicant”), on 30 September 2009.
- The
applicant was represented by Ms O. Mikhaylova and
Ms A. Polozova, lawyers practising in Moscow. The Russian
Government (“the Government”) were represented by Mr G.
Matyushkin, Representative of the Russian Federation at the European
Court of Human Rights.
- On
22 April 2010 the President of the First Section decided to give
priority treatment to the application and to give notice of it to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
- On
17 June 2010 the President of the Chamber, to which the case had been
allocated, decided not to indicate to the respondent Government,
under Rule 39 of the Rules of Court, the interim measure the
applicant was seeking (release from detention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and is detained in an unspecified
detention facility.
A. Criminal proceedings against the applicant
- The
applicant had been a Moscow district prosecutor. He retired in 2006.
- The
national authorities initiated criminal proceedings against several
individuals on suspicion of large-scale embezzlement and abuse of
power committed by an organised criminal group and involving public
officials (see also paragraph 17 below). It appears that in
September 2007 the applicant was interviewed as a witness.
- According
to the national authorities (see paragraph 25 below), from October
2007 onwards the applicant did not comply with the investigating
authority’s summons for interview and was not living at his
registered address.
- On
14 March 2008 investigator G. issued a decision by which the
applicant was given the status of an accused in the above-mentioned
criminal proceedings. On the same day the investigator issued a
decision prohibiting the applicant from leaving his town of residence
and imposing “good behaviour” (подписка
о невыезде
и надлежащем
поведении)
(see also paragraph 59 below). The decision read as follows:
“[The applicant] is registered as residing at the
following address...The investigating authority’s attempts to
determine his actual whereabouts were unsuccessful. There are
sufficient reasons to consider that he has attempted to flee
prosecution. Therefore, I order a preventive measure consisting of
the prohibition to leave the town of residence and the requirement of
good behaviour.”
According
to the applicant, neither he nor his lawyer was informed of those
decisions at the time.
- On
the same day, the investigator ordered that the applicant’s
name be put on the federal wanted list. This order was enforced on 1
April 2008.
- According
to the applicant, during this period of time he did not go into
hiding; he was receiving treatment in a hospital and participated in
public events. For instance, on 14 March 2008 he attended a public
ceremony for the 75th anniversary of the prosecution
service and was given an honorary certificate by the Moscow
prosecutor.
- On
17 March 2008 the applicant met investigator G. and was given a
summons for an interview on 24 March 2008. On that date the
applicant was admitted to town hospital no. 52. On the same day,
investigator K. interviewed the applicant’s son. The latter
stated that the applicant had been admitted to hospital but could not
indicate the address of the hospital.
- On
8 April 2008 the applicant was transferred to a military hospital.
- In reply to an enquiry from investigator K., the town
hospital informed him on 15 April 2008 that the applicant had been
admitted to that hospital from 24 March to 7 April 2008. In reply to
another enquiry, the military hospital informed the investigator,
apparently on 23 April 2008, that the applicant had been a patient
there since 8 April 2008, and that his treatment was expected to be
completed by 30 April 2008.
- In
reply to investigator G.’s summons for an interview on
24 April 2008, the applicant’s lawyer stated that the
applicant was receiving in-patient treatment in the military
hospital, and requested that the decision to order the addition of
the applicant’s name to the federal wanted list be revoked.
- On the same day, 24 April 2008, arresting officers
visited the applicant in the hospital and took him to the
Investigations Department at about 4 p.m. The arrest record was
drafted in the following terms:
“The arrest has been effected under Article 91 §
1 (2) and § 2 of the Code of Criminal Procedure because
eyewitnesses indicated [the applicant] as the perpetrator; he had
previously attempted to evade prosecution and his name had been put
on the federal wanted list. If at large, [the applicant] would
continue to evade prosecution, pursue his criminal activities,
threaten other participants in proceedings, destroy evidence or
otherwise obstruct the proceedings.”
The
applicant made a handwritten comment on the record, indicating that
he had not been identified by any eyewitnesses, had been living in
his flat in Moscow and had not attempted to evade prosecution. The
applicant was provided with a copy of the investigator’s order
listing the charges against him. The applicant was then interviewed
in the presence of counsel until around midnight in connection with
these criminal charges. In addition to detailed comments on the
charges against him and relevant other matters, the applicant stated
that he had been forced to leave the military hospital, and asked to
be re-admitted or provided with medical assistance.
- The applicant was accused of membership of an
organised criminal group (преступное
сообщество),
involving, inter alia, a district prosecutor, an investigator
and several senior officers. According to the investigating
authority, this group was structured, had a stable membership with
assigned roles in criminal activities, internal discipline and
sophisticated planning, involving participants outside the criminal
group, including officials in law-enforcement agencies. According to
the investigating authority, in early 2007 this group set up bogus
criminal proceedings and held searches of the premises of several
private companies, seized their property, and misappropriated other
property. The applicant was charged under Article 159 § 4 of the
Criminal Code (embezzlement as part of an organised group or on a
large scale), Article 286 § 3 in conjunction with Article 33 §
4 (incitement to abuse of power causing serious damage), and Article
210 § 2 (membership of a criminal group).
- The
investigator sought judicial authorisation of the applicant’s
continued detention, alleging that since January 2007 the applicant
had been a member of an organised criminal group which had committed
various acts of fraud with the aid of public officials in office. The
investigator referred to the applicant’s failure to comply with
the preventive measure, his previous employment as a public
prosecutor, and the existence of strong corruptive links between him
and certain officials in the prosecution service or law-enforcement
agencies. The investigator relied in that connection on the results
of the tapping of the applicant’s telephone conversations with
others.
- On 25 April 2008 the Zamoskvoretskiy District Court of
Moscow held a hearing at which it confirmed the lawfulness of the
applicant’s arrest and authorised his continued detention in
the following terms:
“Bearing in mind the gravity of the charges, the
public dangerousness of the offences, the factual circumstances of
the case and the addition of [the applicant’s] name to the
wanted persons list, the court has reasons to consider that if at
large he would evade prosecution, influence witnesses or co-accused
or otherwise obstruct the proceedings. The court is satisfied that
the investigating authorities first learnt about the admission of
[the applicant] to a specific medical facility only on 23 April 2008.
The authority had first been informed about his admission to hospital
no. 52 after his discharge from this hospital. When ordering
measures to determine his whereabouts the authority had no relevant
information.”
- The
applicant appealed, contending that the first-instance court had not
examined any evidence concerning the allegation that he would evade
prosecution. He argued that he had permanent residence in Moscow; the
prosecution had been aware of his whereabouts from the tapping of his
mobile phone; there was no reason to put his name on the wanted
persons list since on 17 March 2008 he had had an interview with
the investigator. In any event, until 14 March 2008 the applicant had
had witness status in the criminal proceedings and thus had not been
under an obligation to inform the investigating authority of his
whereabouts.
- On
15 May 2008 the Moscow City Court upheld the detention order.
- On
30 May 2008 the applicant was given access to the criminal case file.
- On
19 June 2008 the District Court held a hearing. The investigator
argued that the applicant should be kept in detention for one more
month because time was required to allow the defendants and their
lawyers to study the case file, to draft a bill of indictment before
submitting the criminal case to a trial court. The investigator
argued that the grounds for detention persisted, in view of the
gravity of the charges and the circumstances of the criminal case.
Accepting that the investigating authority needed more time to
complete the investigation, the District Court extended the
applicant’s detention until 13 August 2008. The court mentioned
the gravity of the charges and the addition of the applicant’s
name to the wanted persons list.
- On
11 August 2008 the District Court extended his detention until
13 January 2009 on similar grounds. On 30 December 2008 the term
of detention was extended until 24 April 2009.
- On 11 March 2009 the City Court extended the
applicant’s detention until 13 May 2009, with reference to
Article 109 § 7 of the Code of Criminal Procedure (CCrP) (see
paragraph 57 below). The court held as follows:
“[The applicant] has been charged with serious
criminal offences...The present case is particularly complex, and has
required a large number of investigative measures and assessment of a
large amount of documents concerning commercial activities. The file
consists of 190 volumes. Fifteen individuals have been charged. The
exceptional nature of the case is evident. [The applicant] has been
charged with three offences and has been studying the case file since
30 May 2008. There were no unjustified delays in the investigation;
[the applicant] was promptly given access to the file. As can be seen
from the schedule for studying the file, the defendants study it on a
daily basis, except weekends and public holidays.
According to the version of the investigating authority,
the offences in question were committed by an organised criminal
group. The relevant reasons for detention persist.
After interviewing [the applicant] as a witness in
September 2007, since October 2007 the investigating authority issued
summons for interviews, which is confirmed by [the applicant’s]
wife, the summons and other reports. [The applicant] did not attend
interviews, was not at his registered address, and his whereabouts
could not be determined. For these reasons, on 14 March 2008 his name
was added to the wanted persons’ list.
The above circumstances suffice to conclude that if
released he would evade prosecution. Moreover, it is necessary to
complete the study of the case file; he may also continue his
criminal activities. Alternative preventive measures would not
suffice...”
- On
14 April 2009 the Supreme Court of Russia upheld the detention
order of 11 March 2009.
- On
20 April 2009 the City Court extended the detention of five
defendants, including the applicant, until 13 August 2009. Referring
to Article 109 of the CCrP, the court mentioned the complexity of the
criminal case; that the offences had spanned a long period of time;
and that some defendants needed to finish studying the case file. The
court refused bail, including for health reasons.
- The
applicant appealed, arguing that his detention could not be extended
beyond the twelve-month period indicated in Article 109 § 2 of
the CCrP. On 1 June 2009 the Supreme Court rejected his arguments and
upheld the detention order of 20 April 2009.
- On 23 July 2009 the criminal case was submitted for
trial in the City Court. The trial started on 5 August 2009. On that
date, the court refused the detainees’ applications for release
and left the “preventive measure unchanged”, referring to
the gravity of the charges and the risk that they would flee justice
and put pressure on the victims and witnesses on account of the
status of public officials held by some of them, including the
applicant. Referring to Article 255 of the CCrP, the court held as
follows:
“Given the gravity and the number of charges, the
present case discloses a public interest and importance which plead,
despite the presumption of innocence, in favour of limitation of the
[defendants’] liberty; it is not possible to choose a less
intrusive preventive measure.”
- The
applicant appealed, contending that the courts had not relied on any
averred facts to draw conclusions as to the existence and pertinence
of the above-mentioned risks, and that his detention after 24 April
2009 had been unlawful. On 30 September 2009 the Supreme Court
upheld the above-mentioned court decision.
- On 13 January and 19 April 2010 the City Court issued
detention orders extending the applicant’s and his co-accused’s
detention pending trial. These detention orders read as follows:
“Given the number of defendants, the gravity and
the number of charges, the present case is exceptional (also as to
its volume and complexity)...An extension of the period of the
defendants’ detention is necessary in view of the need to
complete the trial, to prevent risks of fleeing justice and putting
pressure on victims or witnesses, this latter risk being real because
of the previous professional activity of certain defendants in
law-enforcement agencies.
The grounds cited for ordering and extending detention
at earlier stages of the proceedings persist; no new circumstances
have been mentioned by the defence...
Given the gravity and the number of charges, the present
case discloses a public interest and importance which plead, despite
the presumption of innocence, in favour of limitation of the
[defendants’] liberty; it is not possible to choose a less
intrusive preventive measure.”
- It
appears that the applicant was convicted on 9 June 2010.
B. Medical care
1. Medical care provided to the applicant prior to his
arrest and detention
- In February 2006, March, July and September 2007 and
March 2008 the applicant was admitted to various civil hospitals and
one military hospital for treatment in relation to a number of
conditions of varying degrees of seriousness. From 24 March to 7
April 2008 the applicant was admitted to a town hospital with the
following diagnoses: Quincke’s oedema, chronic recurrent nettle
rash, intolerance to a number of drugs, focal bulbitis, non-atrophic
gastritis, chronic gastroduodenitis and symptoms of hepatitis.
- On 7 or 8 April 2008 the applicant was admitted to the
neurology unit of a military hospital with the following diagnoses:
chronic hypertensive encephalopathy and asthenic syndrome, coronary
heart disease, exertional angina (pectoris), high blood pressure,
kidney maldevelopment, oesophagal hernia, and bronchitis. The
applicant’s medical history reads as follows:
“The patient complained of headaches, dizziness,
heavy fatigue, insomnia, and recurrent chest pain.
Anamnesis: For a number of years the patient has the
following diagnoses: hypertensive encephalopathy, generalised spinal
osteochondrosis...Outpatient and in-patient treatment gave positive
results. The recent observations disclose a more severe pain
syndrome.
Objective examination data and tests: The patient’s
global condition is satisfactory...The general blood and urine tests
are normal; biochemical blood tests are normal; negative testing for
hepatitis B and C; an electrocardiogram discloses an obstruction of
intra-ventricular conduction and indications of left ventricular
hypertrophy.
Treatment: regimen, diet, medication and vitamins...The
patient has been discharged from hospital in a satisfactory
condition. Recommendations include monitoring by a neuropathologist
and a therapist; blood pressure control, diet no. 10, medication by
Enalapril (one pill in the morning), Predurtal (one pill twice a day)
and Aspikor (one pill regularly);
no load-bearing affecting the spine, no exposure to cold; massage and
exercise therapy.”
- In reply to a request from the investigator dealing
with the applicant’s criminal case (see paragraph 14 above),
the hospital informed him that the applicant’s course of
medical treatment was expected to be completed by 30 April 2008.
2. Medical care provided to the applicant after his
arrest and during his detention
(a) Medical assistance after the arrest
- On
24 April 2008 arresting officers visited the applicant in the
military hospital and took him to the Investigations Department at
about 4 p.m.. The applicant made the following written comment
on the arrest record:
“I am unfit for any further interview, suffering
acute chest pain and high blood pressure”.
- The
applicant was then interviewed in connection with the criminal
charges against him. In addition to detailed comments concerning the
charges against him and other relevant matters, the applicant stated
that he had been forced to leave the military hospital, and asked to
be re-admitted to it or given medical assistance in detention.
- According to the applicant, at some point during the
interview he had a hypertensic attack; the investigator called the
emergency services, who provided the applicant with medical
assistance. The applicant subsequently amended his statement,
alleging that the investigator had refused to call the emergency
services.
- After the interview the applicant was placed in a
temporary detention centre or a cell in the police station and,
allegedly, was not provided with medical assistance or food. The
applicant unsuccessfully sought the institution of criminal
proceedings against the investigator(s).
- The applicant lodged complaints of inadequate medical
assistance after his arrest. On 13 May 2008 an investigator in the
Moscow Investigations Department dismissed them. By a letter of 22
July 2008, the Investigations Department considered that the above
complaints did not disclose any criminal offence and that the
applicant had received and was receiving the necessary medical
assistance.
(b) Medical care in remand centre no. 77/6
and the prison hospital
- On
28 April 2008 the applicant was transferred to Moscow remand centre
no. 77/6. During his admission to the remand centre he was
examined by the duty medical assistant, who concluded that his state
of health was satisfactory. The applicant informed the medical
assistant of his health problems and the medication he was taking.
The medical documents submitted by the applicant were admitted to the
file. The applicant underwent compulsory tests such as fluographic
imaging. According to the Government, on 28 April 2008 he was
placed under supervision by the medical staff and received medication
for his chronic conditions.
- On 11 July 2008 the applicant was examined by a doctor
in connection with his complaints of double vision and dizziness. His
blood pressure was measured and he was prescribed medication with
Enalapril (one pill twice a day) and Validol (one pill). According to
the applicant, there was no documentary proof that he had received
this medication, which, in any event, was “scarce”.
- The
applicant was again examined on 7 October 2008, when he
complained of headaches and dizziness.
- On 25 December 2008 the applicant complained that his
state of health was not being attended to by medical specialists in
various fields (a cardiologist, a therapist, a neuropathologist, a
pulmonologist, an endocrinologist and a gastroenterologist) and that
his discharge from hospital in April 2008 had prevented him from
receiving a proper diagnosis from an allergist, in order to exclude
any undesirable medication. On 15 January 2009 the Moscow
Investigations Department examined his complaint and concluded, with
reference to an information note from the remand centre, that the
applicant’s state of health was satisfactory, that he could
request the necessary medical assistance in the remand centre or
challenge any refusal before a prosecutor or a court. In addition, by
a letter of 16 January 2009 the Moscow Prosecutor’s Office
indicated that the applicant had received the requisite treatment for
his symptoms, as requested in July and October 2008.
- In December 2009 the applicant sought an expert report
from Ms P., professor and deputy chair of the psychotherapy and
narcology department of a Moscow university, concerning his illnesses
over a period of time since 2006. Having assessed the available
medical data (see paragraphs 33 and 34 above), Ms P. made the
following findings in her report of 4 December 2009:
“The patient requires monitoring by medical
specialists in various fields (a cardiologist, a neuropathologist, a
pulmonologist, an endocrinologist, a gastroenterologist and an
allergist) and constant intake of medication under the supervision of
a medical professional. The recommendations include diet, blood
pressure control, glucose blood control, thyroid hormone control,
lipidic control, as well as exclusion of static spinal pressure and
load lifting, and exclusion of exposure to cold.
Non-provision of specialised medical care may cause
irreparable health damage and result in the exacerbation of chronic
illnesses, disability (a heart attack or a cerebrovascular accident)
or death.”
- On
2 January 2010 the applicant was examined by the senior medical
officer of the remand centre in connection with his complaints of
headaches, dizziness and pain in the thoracocervical area and was
given medication.
- From 21 February to 16 March 2010 the applicant was
admitted to a prison hospital of remand centre no. 77/1 in order
for additional examinations by specialist doctors, such as a
neuropathologist and a cardiologist, to be carried out. The applicant
had an electrocardiogram and was prescribed medication with Korinfar,
Papazol and Validol. It appears that in March 2010 the applicant made
a written statement that he no longer wished to be treated in the
prison hospital. The discharge certificate contained recommendations
of monitoring, blood pressure control, and medication with Korinfar
and Papaverin.
- After his discharge from the hospital the applicant
was transferred back to remand centre no. 77/6. He was examined
by the senior medical officer of the remand centre, who prescribed
medication and medical check-ups twice a year.
- In May 2010 the applicant sought another expert
opinion from Professor P. Having assessed the available medical data
(see paragraphs 33 and 34 above), on 21 May 2010 Ms P. expanded her
earlier report, finding as follows:
“Recurring episodes of Quincke’s oedema pose
a real risk to life because of the absence of data concerning the
syndrome aetiology and the absence of diagnosis and treatment of an
allergic condition, which is indispensable. In the absence of
treatment, there is a heightened risk of anaphylactic shock.”
- On
16 August 2010 the applicant was examined by the remand centre doctor
in connection with complaints of pain in the ankle joint. The doctor
diagnosed dermatitis and athrosis, and prescribed medication. It
appears that two days later the applicant refused to take the drugs,
referring to raised blood pressure after earlier medication. On 25
August 2010 the applicant was again examined by the doctor, who
modified his prescriptions.
- The
Government submitted to the Court nine written statements made by the
medical staff of remand centre no. 77/6, to the effect that the
applicant had made no complaints concerning medical care or food
rations and that he had been provided with adequate medical care. The
Government produced detailed descriptions of the food rations
provided to detainees in remand centre no. 77/6 in 2008-2010, as
well as food and water quality reports issued by the specialised unit
of the Prisons Department.
II. RELEVANT DOMESTIC LAW
A. Health care in detention facilities
- Russian law gives detailed guidelines for the
provision of medical assistance to detained individuals. These
guidelines, found in joint Decree no. 640/190 of the Ministry of
Health and Social Development and the Ministry of Justice, on
Organisation of Medical Assistance to Individuals Serving Sentences
or Detained (“the Regulation”), enacted on
17 October 2005, are applicable to all detainees, without
exception. In particular, section III of the Regulation sets out the
procedure for initial steps to be taken by the medical personnel of a
detention facility on admission of a detainee. On arrival at a
temporary detention facility all detainees must have a preliminary
medical examination before they are placed in cells shared with other
inmates. The examination is performed with the aim of identifying
individuals suffering from contagious diseases or in need of urgent
medical assistance. No later than three days after the detainee’s
arrival at the detention facility he should receive a medical
examination, including fluorography. During the in-depth examination
a prison doctor should record the detainee’s complaints, study
his medical and personal history, record injuries if present, as well
as recent tattoos, and schedule additional medical procedures if
necessary. A prison doctor should also authorise laboratory analyses
to identify sexually transmitted diseases, HIV, tuberculosis and
other illnesses.
- Subsequent
medical examinations of detainees are performed at least twice a year
or at a detainee’s request. If a detainee’s state of
health has deteriorated, medical examinations and assistance should
be provided by medical personnel of the detention facility. In such
cases a medical examination should include a general medical check-up
and additional methods of testing, if necessary, with the
participation of particular medical specialists. The results of the
examinations should be recorded in the detainee’s medical
history. The detainee should be fully informed of the results of the
medical examinations.
- Section
III of the Regulation also sets the procedure for cases of refusals
by detainees to undergo medical examination or treatment. In each
case of refusal, an entry should be made in the detainees’
medical record. A prison doctor should explain to the detainee the
consequences of his refusal to undergo the medical procedure.
- Detainees
take prescribed medicines in the presence of a doctor. In a limited
number of cases the head of the medical department of the detention
facility may authorise medical personnel to hand over a daily dose of
medicines to the detainee for unobserved intake.
B. Detention pending investigation
- Article 109 § 2 of the Code of Criminal Procedure
concerning detention pending investigation provided at the time that
after the initial period of detention for two months, another period
of detention of up to six months could be ordered by a court. After
six months, detention could be ordered up to twelve months in
relation to serious and particularly serious offences if the case was
particularly complex. It followed from Article 109 § 3 of the
Code that detention beyond twelve months and up to eighteen months
could be ordered in cases of particularly serious offences.
- Under Article 109 § 5, after the closure of the
preliminary investigation but no later than thirty days before the
expiry of the applicable maximum period of detention (see above), the
defendant should be given access to the case file. If the defendant
obtained access to the file less than thirty days before the expiry
of this period of detention, he should be released when this period
reached its term. However, if the time afforded for studying the
file was insufficient a court could authorise an additional period of
detention until such time the defendant finished studying the file
(Article 109 § 7). This extension also applied to any other
co-defendant who may have already finished studying the file.
C. Other relevant legislation
- Under Article 56 of the Code of Criminal Procedure a
witness should comply with a summons issued to him by an investigator
or a court; for failure to comply a witness may be brought before the
authority which issued the summons.
- A suspect, an accused or defendant may be subject to a
preventive measure consisting of a written undertaking by that person
not to leave their location of residence without permission from an
investigator or a court and/or to respond to any summons issued by
them and/or to refrain from any other conduct obstructing the
proceedings (Article 102 of the Code).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had not been, and was not being,
provided with appropriate medical care, in breach of 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. The parties’ submissions
1. The applicant
- The applicant first argued that his complaints
concerning medical care after the arrest in April 2008 and during his
subsequent detention in remand centre no. 77/6 and the prison
hospital of remand centre no. 77/1 were closely linked to each
other, concerned an uninterrupted period of detention, and had the
same factual and legal basis. Thus, in his view, the facts of the
case disclosed a continuing situation requiring the whole period of
detention to be taken into consideration, despite the six-month rule
under Article 35 § 1 of the Convention.
- As to the substance of the complaints, the applicant
argued that his arrest and detention were unacceptable on account of
his medical conditions at the time; that he had not been provided
with medical assistance after his arrest and during the first days of
his detention. He contended, in respect of the period of his
detention in the remand centre, that he had not been provided with
monitoring by specialist medical staff. In his written
observations, the applicant raised further grievances concerning the
subsequent period of detention, and amended his initial allegations
as follows. According to him, none of the recommendations made during
his in-patient treatment in April 2008 (see paragraph 34 above) had
been complied with after the arrest and during his detention. No
previously prescribed medication had been provided in the remand
centre and in the prison hospital. Since the medication prescribed by
the prison doctor provoked allergies, the applicant stopped taking
it. His blood pressure had been checked on three occasions during a
period of over two years in detention.
2. The Government
- The
Government submitted that the applicant had complained in April,
September and December 2008 at the domestic level about his medical
care, whereas the present application had been lodged on 30 September
2009. They concluded that the applicant had not complied with the
six-month rule under Article 35 § 1 of the Convention.
- As
to the substance of the complaints, the Government argued that the
applicant had been provided with the necessary medical care in the
remand centre and the prison hospital. His medical conditions had
been, and continued to be, monitored on a regular basis by the
medical staff of the remand centre. He had received in-patient
treatment and medication in compliance with prescriptions. The
recommendation issued before his detention had been also taken into
consideration. He had also been admitted to a prison hospital and had
been discharged in a satisfactory condition. There had been no valid
reason to provide him with a special diet. The standard ration for
detainees was compatible with his medical condition.
B. The Court’s assessment
1. Admissibility
- First, the Court will examine the parties’
arguments concerning compliance with the six-month rule under Article
35 § 1 of the Convention.
- In
the present case, the applicant’s initial grievances before the
Court were raised on 30 September 2009. It related to the continuing
period of his detention from 24 April 2008 and concerned the medical
care during the first days of his detention and the alleged
unavailability of monitoring by specialist medical staff in remand
centre no. 77/6. In June 2010 he extended his earlier
allegations in relation to the period of his detention after
September 2009 (see paragraph 62 above). Therefore, the present case
concerns the period of the applicant’s detention from 24 April
2008 to June 2010.
- The Court reiterates that Article 35 § 1 of the
Convention permits it to deal with a matter only if the relevant
complaint has been lodged within six months of the date of the final
decision in the process of exhaustion of domestic remedies (see,
among others, Post v. the Netherlands (dec.), no. 21727/08,
20 January 2009; Otto v. Germany (dec.), no. 21425/06, ECHR
2009 ...; and Baryshnikova v. Russia (dec.),
no. 37390/04, 12 November 2009).
- The
Court also reiterates that complaints which have as their source
specific events which occurred on identifiable dates cannot be
construed as referring to a continuing situation (see Camberrow
MM5 AD v. Bulgaria, (dec.), no. 50357/99, 1 April 2004). At the
same time, the concept of a “continuing situation” refers
to a state of affairs in which there are continuing activities by or
on behalf of the State which render the applicant a victim (see Posti
and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002 VII).
In cases where there is a continuing situation and no relevant final
decision at the domestic level, the six-month period runs from the
cessation of that situation (see Koval v. Ukraine (dec.), no.
65550/01, 30 March 2004). Thus, the Court has to decide
whether the relevant period of the applicant’s detention
constitutes a “continuing situation”, and thus meets the
six-month time-limit.
- The applicant’s complaints concern problems
relating to insufficient medical care which he allegedly had to
endure during the uninterrupted period of his detention. It follows
that the facts of the case can be regarded as a continuing situation
(see, for instance, Vladimir Sokolov v. Russia,
no. 31242/05, § 56, 29 March 2011, and, by contrast,
Vladimir Vasilyev v. Russia (dec.), no. 28370/05,
1 July 2010). Accordingly, the Court dismisses the Government’s
objection to this effect.
- The
Court considers that the complaint concerning medical care in
detention from 24 April 2008 to June 2010 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
- The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of a democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment (see Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV). However, 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 depends on the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and
state of health of the victim (see, among other authorities, Ireland
v. the United Kingdom, 18 January 1978, § 162,
Series A no. 25).
- Ill-treatment
that attains such a minimum level of severity usually involves actual
bodily injury or intense physical or mental suffering. However, even
in the absence of these, where treatment humiliates or debases an
individual, showing a lack of respect for or diminishing his or her
human dignity, or arouses feelings of fear, anguish or inferiority
capable of breaking an individual’s psychological and physical
resistance, it may be characterised as degrading and also fall within
the prohibition of Article 3 (see Pretty v. the United Kingdom,
no. 2346/02, § 52, ECHR 2002-III, with further references).
- In
the context of deprivation of liberty the Court has consistently
stressed that to fall under Article 3 the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering and humiliation connected with detention (see, mutatis
mutandis, Tyrer v. the United Kingdom, 25 April 1978,
§ 30, Series A no. 26, and Soering v. the United
Kingdom, 7 July 1989, § 100, Series A no. 161).
- Furthermore, the Court reiterates that allegations of
ill-treatment should be supported by appropriate evidence. In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, cited above, § 161). However, such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of
fact. Convention proceedings do not in all cases lend themselves
to a rigorous application of the principle affirmanti incumbit
probatio (he who alleges something must prove that allegation),
as in certain instances the respondent Government alone have access
to information capable of corroborating or refuting allegations.
Failure on a Government’s part to submit such information
without a satisfactory explanation may give rise to the drawing of
inferences as to the well-foundedness of the applicant’s
allegations (see, in various contexts, D.H. and Others v. the
Czech Republic [GC], no. 57325/00, § 179, ECHR 2007 IV;
Ahmet Özkan and Others v. Turkey, no. 21689/93, §
426, 6 April 2004; Aleksandr Leonidovich Ivanov v. Russia,
no. 33929/03, §§ 27-35, 23 September 2010; and Boris
Popov v. Russia, no. 23284/04, §§ 65-67, 28
October 2010).
- Regarding
the issue of health care in detention facilities, the Court
reiterates that under Article 3 of the Convention the State must
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 ensured by, among other
things, providing him with the requisite medical assistance (see
Kudła v. Poland [GC], no. 30210/96, § 94, ECHR
2000 XI).
- Where
complaints are made of failure to provide requisite medical
assistance in detention, it is not essential for such a failure to
lead to any medical emergency or otherwise cause severe or prolonged
pain in order to find that a detainee has been subjected to treatment
incompatible with the guarantees of Article 3 (see Ashot
Harutyunyan v. Armenia, no. 34334/04, § 114, 15
June 2010). The fact that a detainee needed and requested such
assistance but it was unavailable to him may, in certain
circumstances, suffice to reach a conclusion that such treatment was
in breach of that Article (ibid).
- Thus,
although Article 3 cannot be interpreted as laying down a general
obligation to release a detainee on health grounds save for
exceptional cases (see Papon v. France (no. 1) (dec.), no.
64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.),
no. 48799/99, 5 April 2001), a lack of appropriate medical
treatment may raise an issue under Article 3, even if the
applicant’s state of health does not require his immediate
release.
- The national authorities must ensure that diagnosis
and care in detention facilitates, including prison hospitals, are
prompt and accurate, and that, where necessitated by the nature of a
medical condition, supervision is regular and involves a
comprehensive therapeutic strategy aimed at ensuring the detainee’s
recovery or at least preventing his or her condition from worsening
(see Pitalev v. Russia, no. 34393/03, § 54,
30 July 2009, with further references).
- On the whole, while taking into consideration “the
practical demands of imprisonment” the Court reserves
sufficient flexibility in deciding, on a case-by-case basis, whether
any deficiencies in medical care were “compatible with the
human dignity” of a detainee (see Aleksanyan v. Russia,
no. 46468/06, § 140, 22 December 2008). In its assessment
the Court gives thorough scrutiny to the question concerning the
compliance with recommendations and prescriptions issued by medical
professionals, in the light of specific allegations made by the
applicant and with due regard to the gravity of the medical
condition.
- At
the same time, the Court considers that an unsubstantiated allegation
of no or unsatisfactory medical care is normally insufficient to
disclose an issue under Article 3 of the Convention. A credible
complaint should normally include, among other things, sufficient
reference to the medical condition in question, related medical
prescriptions and recommendations which were sought, made or refused,
as well as some evidence – for instance, expert reports –
capable of disclosing serious failings in the applicant’s
medical care.
- The Court also reiterates that its task is to
determine whether the circumstances of a given case disclose a
violation of the Convention in respect of an applicant, rather than
to assess in abstracto national legislation of the respondent
State, its regulatory schemes or the complaints procedure used by an
applicant. Thus, mere reference to the domestic compliance with such
legislation or schemes, for instance as regards licensing of medical
institutions or qualifications of medical professionals, does not
suffice to oppose an alleged violation of Article 3 of the
Convention. It is fundamental that the national authorities dealing
with such an allegation apply standards which are in conformity with
the principles embodied in Article 3 (see paragraphs 71-79 above).
(b) Application of the principles to the
present case
- The
Court observes that between February 2006 and his arrest on 24 April
2008 the applicant was admitted to various hospitals on several
occasions (see paragraphs 33 and 34 above). As can be seen from
two expert reports, submitted by the applicant, his medical condition
required specialised medical care, including monitoring by medical
specialist in various fields, and constant intake of medication under
the supervision of a medical professional (see paragraphs 45 and 49
above). On 24 April 2008 the applicant was taken by arresting
officers from a medical facility in order to bring him before an
investigator in relation to a pending criminal case (see paragraphs
14-16 above). Thereafter, the applicant was kept in a remand centre,
as well as in a hospital of another remand centre.
- The
applicant argued that his arrest and detention were unacceptable on
account of his medical conditions at the time and that he had not
been provided with medical assistance after his arrest. However, the
main thrust of his argument concerned the alleged absence or
inadequacy of medical care provided to him between 24 April 2008 and
June 2010 (see paragraph 62 above).
- The
Court should determine whether during the relevant period of
detention the applicant needed regular medical care, whether he was
deprived of it as he claims, and if so whether this amounted to
inhuman or degrading treatment contrary to Article 3 of the
Convention (see Farbtuhs v. Latvia, no. 4672/02, §
53, 2 December 2004, and Sarban v. Moldova,
no. 3456/05, § 78, 4 October 2005).
- The
Court considers, and it is common ground between the parties, that at
least some of the applicant’s medical conditions during the
relevant period of time were relatively serious and required a wide
range of treatment.
- Having
assessed the available material, the Court cannot but observe that
the applicant made, at different stages of the proceedings before the
Court, contradictory statements concerning (non-)availability of
emergency assistance on the day of his arrest in relation to a
hypertensic crisis (see paragraph 38 above). Therefore, the Court
does not find it established that the applicant was refused medical
assistance on the day of his arrest.
- The
Court also reiterates that Article 3 cannot be interpreted as laying
down general obligations not to detain a person or to release a
detainee on health grounds. While it is worrying that the applicant’s
treatment in the hospital was interrupted, the Court considers that
this fact in itself does not entail a violation of Article 3 of the
Convention, provided that, given the practical demands of
imprisonment, the authorities made appropriate arrangements for
ensuring the applicant’s health and well-being in detention.
- Indeed,
the main thrust of the applicant’s argument before the Court
concerns the alleged unavailability of monitoring by specialist
medical staff between April 2008 and June 2010. Focusing on the
question of appropriate arrangements for ensuring the applicant’s
health and well-being in detention, the Court has to assess the
applicant’s specific allegations.
- The
Court observes in that connection, and it is undisputed between the
parties, that during his admission to the remand centre the applicant
was examined by a medical assistant, who added to the file the
medical documents submitted by the applicant. According to
the Government, on 28 April 2008 the applicant was placed under
supervision by the medical staff and received medication for his
chronic conditions. The issue of monitoring was examined at the
domestic level and was dismissed as unfounded. The Court does not
find sufficient reasons to disagree with the domestic assessment. Nor
did the applicant challenge in any national proceedings the findings
made during the inquiries (see paragraphs 39, 40 and 44 above).
- It
does not follow from the reports compiled at the applicant’s
request in December 2009 and May 2010 that he had been refused proper
monitoring or that it had adversely affected his medical
condition(s), to the extent offending the guarantees of Article 3 of
the Convention (see paragraphs 45 and 49 above). Similarly, it has
not been substantiated that the allegedly unsatisfactory frequency of
blood pressure checks disclosed a serious failing which was such as
to violate the requirements of Article 3 of the Convention. As
to other aspects of his medical care, including his allegations
concerning “scarcity” of medication (see paragraph 42
above), the applicant has not substantiated them and has not
submitted appropriate evidence.
- In
view of the foregoing, the Court considers that, given the practical
demands of imprisonment, the authorities made appropriate
arrangements for ensuring the applicant’s health after his
arrest and during his detention.
- The
Court recognises that detained applicants may have difficulties in
collecting evidence to substantiate, both at the national level and
before this Court, their grievances relating to previous or ongoing
deficiencies in medical care in detention. This is especially so when
such grievances involve complex medical issues. Nevertheless, the
Court considers that the applicant, who was represented at the
national level and before this Court by a lawyer, did not provide
sufficient and convincing arguments disclosing that any averred and
allegedly serious failings on the part of the national authorities
from 24 April 2008 to June 2010 were such as to violate the
requirements of Article 3 of the Convention.
- Accordingly,
there has been no violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his arrest and detention had been unlawful,
in breach of Article 5 § 1 of the Convention, which reads as
follows:
“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...”
- First,
the applicant argued that there had been no factual grounds for
considering that he had not complied with the initial preventive
measure against him (obligations not to leave his town of residence
and to comply with the investigating authorities’ orders).
Since this circumstance served as a reason for his arrest this could
not be considered lawful. Second, as the charges against him did not
fall within the category of “particularly serious offences”
(see paragraph 56 above), his detention should not, in any
circumstance, have been maintained after the expiry of the
twelve-month period on 24 April 2009 for which reason the
subsequent detention was unlawful, in breach of Article 109 § 2
of the Code of Criminal Procedure (CCrP).
- The
Government argued that the applicant’s arrest and detention
from 24 April 2008 to April 2009 had been lawful within the meaning
of the CCrP. Second, the Government argued that the period of
detention since April 2009 had been regulated by Article 109 of the
CCrP.
- The Court considers that by application of the
six-month time-limit under Article 35 § 1 of the Convention
it has no jurisdiction to examine the applicant’s complaint
concerning the alleged unlawfulness of his arrest on 24 April 2008.
Concerning this point, the final decision in the normal chain of
exhaustion of domestic remedies was taken on 15 May 2008 by the
city court, while the related complaint was raised before this Court
on 30 September 2009. It follows that this complaint has been
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
- Second,
the Court has examined the above-mentioned complaint concerning the
applicant’s allegedly unlawful detention after 24 April 2009.
It is noted that the applicant’s detention until 5 August 2009
was covered by Article 109 of the CCrP. In the present case the
twelve month period would expire on 24 April 2009. On
20 April 2009 the city court maintained the applicant in custody
with reference to Article 109 §§ 5 and 7. These were the
provisions which regulated detention during the procedure for
studying the case file before the case was submitted for trial (see
paragraph 57 above). Thus, the Court concludes that the applicant’s
detention from 20 April to 5 August 2009, when the trial
started, was lawful under Article 109 of the CCrP.
- Furthermore,
it is noted that on 5 August 2009 the applicant’s detention was
lawfully extended pending the trial under Article 255 of the CCrP.
Accordingly, there is no indication that the applicant’s
detention pending the trial from 5 August 2009 to 9 June 2010, when
he was convicted, was unlawful in domestic terms.
- Lastly,
the Court does not find any reasons to consider that the applicant’s
detention pending the investigation and the trial was arbitrary or
otherwise in breach of Article 5 § 1 of the Convention. The
applicant’s arguments concerning sufficiency of reasons for his
detention will be examined below under Article 5 § 3 of the
Convention.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention pending the
investigation and trial had been unreasonable and had not been based
on relevant and sufficient reasons, in breach of Article 5 § 3
of the Convention, which reads as follows:
“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. The parties’ submissions
- The
Government argued that the applicant’s arrest and detention had
been justified with reference to the nature of the criminal
activities which were the factual basis of the charges against him
and several other persons. In view of his status as a (former) public
official, the applicant could have obstructed the course of the
investigation, if at large; he could have influenced the testimony of
witnesses, of whom he had been either a hierarchical superior or a
supervising official. The applicant had failed to comply with the
initial preventive measure (an obligation not to leave his town of
residence) and had thus been treated as a fugitive. The national
courts had thoroughly assessed all relevant circumstances, including
the applicant’s state of health or alternative preventive
measures. The courts had given weight to the arguments pertaining to
the complexity of the case and the number of investigative measures
to be carried out, and had made sure that the proceedings were
carried out with special diligence.
- The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No
other ground for declaring it inadmissible has been established.
Thus, it should be declared admissible.
2. Merits
(a) General principles
- The
Court reiterates that the existence and persistence of a reasonable
suspicion that the person arrested has committed an offence is a
condition sine qua non for the assessment of the continued
detention. However, with the lapse of time this suspicion no longer
suffices. The national authorities must establish the existence of
specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighed the
rule of respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Bykov v. Russia
[GC], no. 4378/02, §§ 62 and 63, ECHR 2009 ...).
It should be established whether the other grounds given by the
authorities continued to justify the deprivation of liberty (see
McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR
2006 X). Where such grounds were relevant and sufficient, the
Court must also be satisfied that the national authorities displayed
special diligence in the conduct of the proceedings.
- The
Court reiterates that the risk of flight should be assessed with
reference to various factors, especially those relating to the
character of the person involved, his morals, his home, his
occupation, his assets, his family ties and all kinds of links with
the country in which he is being prosecuted (see Neumeister v.
Austria, 27 June 1968, § 10, Series A no. 8;
Shenoyev v. Russia, no. 2563/06, § 55, 10 June 2010;
and Ściebura v. Poland, no. 39412/08, § 30, 15
February 2011).
- As
to the risk of obstruction of the proceedings, the national
authorities should have regard to pertinent factors such as the
advancement of the investigation or judicial proceedings and their
resumption, or any other specific indications justifying the fear
that the applicant might abuse his regained liberty by carrying out
acts aimed, for instance, at the falsification or destruction of
evidence (see W. v. Switzerland, 26 January 1993, §
36, Series A no. 254-A).
- The
risk of reoffending, if convincingly established, may lead the
judicial authorities to place and leave a suspect in detention in
order to prevent any attempts to commit further offences. It is
however necessary, among other conditions, that the danger be a
plausible one and the measure appropriate, in the light of the
circumstances of the case and in particular the past history and
personality of the person concerned (see, among others, Clooth
v. Belgium, 12 December 1991, § 40, Series A
no. 225, and Paradysz v. France, no. 17020/05, §
71, 29 October 2009).
- Furthermore,
in the Court’s view, the concerted or organised nature of the
alleged criminal activities may be relevant for the assessment of
specific risks. The existence of a general risk flowing from it
may be accepted as the basis for detention at the initial stages
of the proceedings (see Kučera v. Slovakia,
no. 48666/99, § 95, 17 July 2007, and Celejewski
v. Poland, no. 17584/04, §§ 37 and 38,
4 May 2006). In cases concerning organised criminal groups,
the risk that a detainee, if released, might bring pressure to bear
on witnesses or other co-accused or might otherwise obstruct the
proceedings is not negligible.
- Lastly,
the Court reiterates that, by reason of their particular gravity and
the public reaction to them, certain offences may give rise to public
disquiet capable of justifying a period of detention (see I.A. v.
France, 23 September 1998, § 104, Reports of
Judgments and Decisions 1998 VII, and Bouchet v. France,
no. 33591/96, § 43, 20 March 2001). In exceptional
circumstances – and subject to there being sufficient
foundation for it – this factor may therefore be taken into
account for the purposes of Article 5 § 3 Convention. However,
this ground can be regarded as relevant and sufficient only if it is
based on circumstances capable of showing that the defendant’s
release would actually prejudice public order. In addition, detention
will continue to be legitimate only if public order actually remains
threatened; its continuation cannot be used to anticipate a custodial
sentence (see Kemmache v. France, 27 November 1991, § 52,
Series A no. 218, and Tomasi v. France, 27 August 1992, §
91, Series A no. 241-A).
(b) Application of the principles to the
present case
- The
applicant was arrested on 24 April 2008 and convicted by a trial
court on 9 June 2010. Noting that the applicant’s grievance
relates to the entire period of his detention pending the
investigation and the trial (see by contrast, Kevin O’Dowd
v. the United Kingdom, no. 7390/07, §§ 71-77,
21 September 2010), the period to be considered under Article 5
§ 3 of the Convention amounted to two years, one month and
fifteen days.
- The
Court considers that the suspicion against the applicant was a
reasonable one in the circumstances and that it persisted during the
above period of time. It accepts that the existence of this suspicion
justified the applicant’s arrest and the initial period of
detention.
- As
to the subsequent period of detention, the Court has to establish
whether the other grounds given by the authorities continued to
justify the deprivation of liberty. As can be seen from the detention
orders, when extending the applicant’s detention the domestic
courts justified their findings concerning the risks of flight or
obstruction with reference to the seriousness of the charges and the
alleged obstructive behaviour of the applicant before his arrest on
24 April 2008. The Court will examine in turn the relevant aspects,
as they were referred to by the national courts.
(i) Risks of evading justice and
obstructing the proceedings
- The
Court observes that the applicant’s arrest and detention were
based on the authorities’ findings concerning the applicant’s
previous behaviour between October 2007 and March 2008. The Court
cannot but observe that during this period of time the applicant had
the status of witness in criminal proceedings. In any event, the
Court was not provided with any material which could enable it to
rely on any pertinent factors concerning the period from September
2007 to March 2008, as mentioned in the detention order of 11 March
2009 (see paragraph 25 above).
- Having examined the available material, the Court is
satisfied that the applicant was effectively informed of the summons
issued on 17 March 2008. However, it does not appear that
he gave any undertaking in respect of the obligations contained in
the initial preventive measure, namely the obligation not to leave
his town of residence and good behaviour (see paragraph 59 above).
While at that time the applicant was a suspect in a pending
investigation and was required to reply to summons, the Court does
not have sufficient elements in its possession to allow it to
conclude that the applicant had acted in such as a way as to give
credence to the allegations put forward by the investigator and the
court which had detained him, in order to substantiate the risks of
evading justice or obstructing the proceedings.
- The
detention decisions also mentioned the organised nature of the
criminal activities for which the applicant and other persons were
being prosecuted. Indeed, the applicant was accused in
connection with his alleged membership of a structured criminal
group, which had stable membership with assigned roles in criminal
activities, internal discipline and sophisticated planning, involving
participants outside the criminal group, including officials of
law-enforcement agencies. The applicant was charged under an Article
of the Criminal Code making it a separate criminal offence to be a
member of such a criminal group. The applicant was also prosecuted
for embezzlement in an organised group or on a large scale and
incitement to abuse of power causing serious damage.
- However,
it does not appear from the available material that the concerted
nature of the alleged criminal activities formed the significant part
of the detention courts’ reasoning at the advanced stage of the
proceedings, namely after the completion of the preliminary
investigation in May 2008.
- No
other convincing elements were adduced in the domestic proceedings to
substantiate the risks of flight and obstructing the proceedings at
the advanced stages of the proceedings to justify the applicant’s
detention for over two years.
- Therefore,
the Court concludes that they were not convincingly established.
(ii) Risk of reoffending
- The
Court observes that while not established in the initial detention
order, this risk was mentioned without any further assessment at
subsequent stages of the proceedings, for instance in March 2009 (see
paragraphs 19 and 25 above). However, it was not established that the
risk of further offences was a plausible one and that the preventive
measure was appropriate, for instance in the light of the applicant’s
previous criminal record or personality. Therefore, the Court is not
convinced that the risk of reoffending was sufficiently established.
(iii) Protection of public order
- The Court also observes that the respondent
Government and, the national courts between July 2009 and April 2010,
referred to the “public interest and importance” at stake
in the present case (see paragraphs 29 and 31 above). In so far as
they may be understood to rely on the protection of public order as a
ground for detention, the Court notes that it does not appear that
Russian law recognised prejudice to public order caused by an offence
as a ground for detention (see Aleksandr Makarov v. Russia,
no. 15217/07, § 137, 12 March 2009). In any event, no
such ground for detention was articulated clearly by the national
courts. The courts did not explain why the continued detention of the
applicant was necessary in order to prevent public disquiet and did
not examine whether the applicant presented a danger to public
safety. Therefore, the arguments of the Government referring to the
protection of public order cannot be seen as a sufficient basis for
extending the applicant’s detention. The Court reiterates in
that connection that it is not its task to take the place of the
national authorities which ruled on the applicant’s detention
(see Ilijkov v. Bulgaria, no. 33977/96, § 86,
26 July 2001).
- Lastly,
the Court observes that from March to August 2009 the applicant’s
detention was justified with reference to the fact that the defence
was still studying the case file at the time, and that the file was
undeniably voluminous (see paragraph 25 above). The Court considers
that a mere reference to the need to carry out investigative
measures, such as those referred to above, is not as such a relevant
consideration justifying the continued detention (see also Shteyn
(Stein) v. Russia, no. 23691/06, § 117, 18 June 2009).
It is accepted that the length of the period of time dedicated to the
pre-trial study of the case file by the defendant was meant to
enforce his procedural rights, in particular those protected by
Article 6 § 3 (b) and (c) of the Convention. However, the
reasonableness of the related period of detention should have been
assessed with reference to the relevant risks and individualised
factors convincingly pleading for a departure from the rule of
respect for individual liberty, as it is contained in Article 5 §
1 of the Convention, and with due regard to the presumption of
innocence.
(iv) Conclusion
- In
view of the foregoing, the Court concludes that the Russian
authorities failed to adduce relevant and sufficient reasons to
justify extending the applicant’s detention to two years and
over one month. There has therefore been a violation of Article 5 §
3 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant raised a number of complaints under Article 6 of the
Convention in relation to the pre-trial proceedings in his criminal
case. In November 2010 he also raised grievances concerning the
material conditions of detention in the remand centre and the
conditions of transport and confinement in the courthouse.
- The
Court has examined these complaints as submitted by the applicant.
However, in the light of all the material in its possession, and in
so far as the matters complained of are within its competence, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
V. 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 200,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered that this claim was unrelated to the complaints
raised in the present application.
- The Court disagrees and considers that the distress
and frustration caused to the applicant cannot be compensated for by
the mere finding of a violation. Having regard to the nature of the
violation found in the present case and making its assessment on an
equitable basis, the Court awards the applicant EUR 2,500 in respect
of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 1,400 for the costs and expenses paid by
Mrs M.A. Samoylova for the legal representation of the applicant
before the Court by Ms O. Mikhaylova.
- The
Government contested this claim.
- 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. It should be noted that certain complaints
were declared inadmissible. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
awards EUR 1,000, plus any tax that may be chargeable to the
applicant. This amount should be paid to Mrs M.A. Samoylova.
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 complaints concerning medical care
in detention from 24 April 2008 to June 2010 and length of
detention pending investigation and trial admissible and the
remainder of the application inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non pecuniary damage, to be converted into Russian
roubles at the rate applicable on the date of settlement;
(b) that
the respondent State is to pay Mrs M.A. Samoylova, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 1,000
(one thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be converted into
Russian roubles at the rate applicable on the date of settlement;
(c) 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 24 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Peer Lorenzen
Registrar President
