ITEMID: 001-95483
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: EVANGELOS TZAMALIS AND OTHERS v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicants, Mr Evangelos Tzamalis, Mr Emmanouil Tzamalis, Mr Kostas Petropoulos and Mrs Sofia Markopoulou, are Greek nationals who live in Megara Attikis. They were represented before the Court by the Greek Helsinki Monitor, a Greek non-governmental organisation. The Greek Government (“the Government”) were represented by their Agent’s Delegates, Mr G. Kanellopoulos, Senior Adviser at the State Legal Council, and Mr I. Bakopoulos, Legal Assistant at the State Legal Council. Third-party comments were received from one Geneva-based non-governmental organisation, Centre on Housing Rights and Evictions, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).
The facts of the case, as submitted by the parties, may be summarised as follows.
Two of the applicants, Mr Em. Tzamalis and Mr K. Petropoulos, are permanent residents at the Municipality of Megara where they are registered. The first had applied and obtained in 2004 a housing loan from the Greek State for the purchase of a constructible plot in Megara. The second had also applied in 2004 to benefit from the housing programme in Megara, but his application was turned down because the conditions required were not met.
In late 2005, the four applicants, together with other Roma families, all of whom lived until then in Megara (Attica), moved to the “Kladissos” area which is located at the administrative borders of the Municipality of Canea with the Municipality of Therissos, in the island of Crete. The applicants proceeded to set up their sheds in a section of a road that was not yet in operation. The surrounding area was being used as an impromptu rubbish tip. According to information from local police, the place where the applicants established themselves belongs to the Municipality of Therissos, while one family settled in an adjacent plot of land belonging to a private person.
Various local officials such as representatives from the Health Directorate and from the Municipality of Therissos, the deputy Prefect of Canea as well as the commander of the Canea Police Station visited the place where the applicants had set up their sheds and noted that the living conditions prevailing there were unsavoury and unhealthy. Certain efforts were made by the officials to find alternative sites for accommodation. Police officials eventually proceeded to file on 29 June 2006 six complaints for breach of the A5/696-11/5/1983 Sanitary Regulation and in particular because “on 8 April 2006 the Roma created problems of aesthetics and pollution with rubbish and other old items”.
It transpires from a document established on 8 August 2006 by the police Directorate of Canea that on 15 June 2006 the owner of the plot of land where one family had settled arrived at the office of the First Deputy Director of the Police Directorate, accompanied by his lawyer, and requested the police to put an end to the situation created in the area. Some days later, the owner made a written report to the police whereby he complained about the occupation of his property by the illegal settlers who had transformed it into a rubbish tip and asked the police to intervene in order to expel them and destroy the shed which they had set up illegally.
On 15 June 2006, police arrived at the settlement and asked the settlers to leave, informing them of the possibility of a forced eviction if they failed to leave by themselves.
On 18 July 2006, police escorted a bulldozer and a demolition crew from a municipal enterprise to the settlement.
According to the applicants and as subsequently corroborated by the police, the bulldozer proceeded to demolish seven sheds. One of them was the shed that was located on private property while the remaining six sheds were located on municipal owned land. The police did not demolish the remaining four sheds but warned those living there that should they not leave the area, their sheds would also be demolished.
On 20 July 2006, the Greek Helsinki Monitor filed a criminal complaint with the Canea First Instance Prosecutor’s Office on the applicants’ eviction or threatened eviction while it also informed the Chief of the Hellenic Police of the eviction. In both cases, it called for the launching of criminal and disciplinary proceedings against both police officers and municipal officials who had been involved in the eviction, while it also called upon both the judicial and the police authorities to examine whether the actions of the police officers and municipal officials might have been racially motivated. In particular, the NGO complained of accumulated threats on the part of police officers, waste of alien’s property, breach of domestic asylum and racial discrimination.
On 15 October 2006, the applicants decided to leave Crete and seek to settle elsewhere.
On 6 February 2008, the Greek Helsinki Monitor, which had received on 1st August 2006, notarized powers of attorney by the four applicants, filed a complaint on their behalf. The new complaint was similar to the one lodged on 20 July 2006.
On 26 January 2009, the Canea First Instance Prosecutor dismissed both complaints. He noted that the first complaint was lodged not by the persons concerned but by the Greek Helsinki Monitor, which had not at the time a power of attorney, and that the second complaint was lodged out of time.
The applicants appealed against this decision to the Crete Court of Appeal Prosecutor’s office but on 30 April 2009, the Prosecutor dismissed the appeal as out of time. The Prosecutor noted that the applicants had not respected the time-limit of fifteen days for lodging the appeal and held that the fact that they had taken knowledge of the decision of the Canea First Instance Prosecutor belatedly, due to the absence abroad of their representative, did not constitute a case of force majeure or of an absolute impediment to file the appeal within the above-mentioned time-limit.


ITEMID: 001-99859
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SLANKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1937 and lives in Feodosiya.
5. On 10 June 1997 the applicant instituted civil proceedings in the Feodosiya Court against the State-owned company Krymenergo seeking compensation for pecuniary and non-pecuniary damage caused by allegedly unlawful electricity cuts and inaccurate calculation of her electricity charges.
6. Between January 1998 and March 1999 the applicant modified her claims on six occasions.
7. On 12 March 1998 the Feodosiya Prosecutor's Office lodged a counter-claim on behalf of Krymenergo seeking recovery of electricity charges not paid by the applicant.
8. On 5 January 1999 the applicant lodged with the same court a defamation claim against Krymenergo.
9. On 12 March 1999 the court joined that claim to the original proceedings.
10. On 17 March 1999 the court dismissed the applicant's claims as unsubstantiated and allowed the counter-claim, ordering the applicant to pay 269 Ukrainian hryvnias (UAH) to Krymenergo.
11. On 2 June 1999 the Crimea Supreme Court quashed that judgment and remitted the case to the first-instance court for fresh consideration.
12. According to the Government, on 28 September 1999, the applicant requested the court to suspend the proceedings. On the same day the request was granted. The applicant denied that she had made such a request.
13. On 5 December 2000 the proceedings were resumed.
14. By a procedural decision of 5 December 2000 the court ordered the parties to check the payments already made for electricity and to inform the court accordingly. According to the Government, the applicant failed to comply with that decision. The applicant denied that contention. On 28 February 2001 the court reiterated its order and, by April 2001, the parties had submitted the information concerning the payments.
15. On 20 August 2001 the Feodosiya Court rejected the applicant's claims and ordered her to pay UAH 180.85 in debts.
16. On 17 September 2001 the applicant appealed.
17. On 18 January 2002 the applicant's appeal was rejected for failure to comply with procedural requirements. The applicant disagreed and challenged the ruling of 18 January 2001 on appeal. Between January 2002 and June 2005 her appeals were dealt with by the court of first instance and on appeal. Ultimately, the appeals were allowed and on 30 August 2005 the Court of Appeal quashed the judgment of 20 August 2001 and remitted the case to the first-instance court for fresh consideration.
18. Meanwhile, on 14 March 2003 the Council of Judges examined the applicant's complaint that the judge of the first-instance court dealing with her case had taken too long to examine her appeals. The Council of Judges allowed the applicant's complaint and issued an official reprimand against the judge.
19. Following reconsideration of the case, on 4 July 2006 the Feodosiya Court found against the applicant and ordered her to pay UAH 259.73 in debts.
20. On 12 September 2006 the Court of Appeal rejected the applicant's appeal as lodged out of time.
21. On 26 April 2007 the Supreme Court upheld the ruling of 12 September 2006.
22. Out of thirty-six court hearings held in the course of the proceedings, one was adjourned due to the applicant's failure to appear, two were adjourned due to the prosecutor's failure to appear, four were adjourned due to both parties' failure to appear, seven were adjourned due to Krymenergo's representative's failure to appear, and three were adjourned due to the judge's absence. According to the Government, the parties submitted about fifty procedural requests, asking the courts, in particular, to call witnesses and to secure evidence. Some of the requests were allowed, resulting in the postponement of the hearings.
23. On 8 May 2002 the applicant instituted proceedings in the Feodosiya Court against the Feodosiya Electrical Transmission Network Company seeking compensation for damage to her reputation allegedly caused by the latter.
24. On 25 February 2003 the court joined Krymenergo as a respondent to the proceedings.
25. On 27 February 2003 the applicant lodged a similar claim against Krymenergo with the same court. This was joined to the proceedings concerning her initial claim for compensation.
26. On 3 July 2003 the court rejected the applicant's claims as unsubstantiated.
27. On 24 November 2003 the Crimea Court of Appeal upheld that judgment.
28. On 13 May 2006 the Supreme Court rejected the applicant's appeal in cassation as unsubstantiated.
29. In February and April 2003 the applicant lodged two separate complaints with the Feodosiya Court against the judge dealing with her dispute with Krymenergo, alleging inactivity on the part of the judge with regard to her appeal against the Feodosiya Court's judgment of 20 August 2001.
The applicant's complaints were rejected as falling outside the jurisdiction of the courts. In particular, Ukrainian law granted judges and courts immunity from civil and administrative proceedings against them for actions and decisions taken in their official capacity.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91993
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF WELLER v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+8;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The first applicant (“the applicant”), was born in 1974 and lives in Budapest. The second and the third applicant, Dániel Weller and Máté Weller, the applicant’s twin sons, were born in 2005 and live in Budapest.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. In 2000 the first applicant married a Romanian citizen, who currently lives in Hungary. The couple are raising four children from the previous marriage of the wife and they have successfully claimed numerous allowances on their behalf. On 30 June 2005 the wife gave birth to the second and third applicants. Both of them acquired Hungarian nationality by birth, through their father. At the material time, the mother held a residence permit (tartózkodási engedély). She was granted a settlement permit (letelepedési engedély) in May 2007.
8. On 7 September 2005 the first applicant requested maternity benefit (anyasági támogatás) amounting to 148,000 Hungarian forints (HUF) from the Budapest and Pest County Regional Directorate of the Hungarian Treasury in his own name and on behalf of his children.
9. On 8 September 2005 the Regional Directorate refused the applicant’s claim. It pointed out that, in the light of the relevant provisions of Act no. 84 of 1998 on Family Support (“the Act”), only mothers, adoptive parents and guardians were entitled to the benefit in question. It also noted that the natural father might only apply for such an allowance if the mother were deceased. The first applicant appealed.
10. On 20 January 2006 the Hungarian Treasury dismissed his appeal. The Treasury established that, pursuant to the Act, only mothers with Hungarian citizenship might apply for maternity benefit. It further observed that the Act applies only to those non-Hungarian citizens who have obtained settlement permits (letelepedési engedély), being either refugees or citizens of another Member State of the European Union. It concluded that, since the applicant’s wife did not fall into either of these categories, the claim had to be rejected, since the natural father was not entitled to such benefits.
11. On 6 March 2006 the first applicant sought judicial review before the Pest County Regional Court. He argued that the legal background of the institution of maternity benefit, as well as the decisions of the competent Hungarian authorities, were discriminatory and contravened the Hungarian Constitution and Article 14 of the Convention.
12. On 5 July 2005 the Regional Court, finding that the administrative authorities’ decisions had been in compliance with the law, dismissed the applicant’s claim. It held, inter alia, that the purpose of maternity benefit was to support the mother and not the entire family or the children, therefore the latter could not be considered to have suffered discrimination.
13. On 7 August 2006 the applicant lodged a constitutional complaint with the Constitutional Court. These proceedings are apparently still pending.
“The Act shall be applied – unless an international treaty regulates otherwise – to those living on the territory of the Republic of Hungary, who
a) are Hungarian nationals,
b) have obtained an immigration or settlement permit, and to those who have been recognised as refugees by the Hungarian authorities,
c) fall under the scope of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community and – with the exception of the maternity benefit (Chapter IV of the Act) – of the Regulation (EEC) No. 140//71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, provided that such persons – with the exception of frontier workers – at the time of requesting the allowance have obtained a valid residence permit.”
“(1) Persons entitled to maternity benefit after giving birth are:
a) women who, during pregnancy, attended at least four times – in case of premature birth, once – prenatal care;
b) adoptive parents, if the adoption was finally authorised within 180 days of the birth;
c) the guardian, if the child – based on a final decision – was taken into his/her custody within 180 days of the birth.”
“If the woman entitled to maternity benefit dies before it is paid, then it shall be paid to the father living under the same roof or, in the absence of such a person, to the guardian of the child.”
“A request for maternity benefit may be submitted within 180 days of giving birth.”
VIOLATED_ARTICLES: 14
8


ITEMID: 001-91839
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KATONA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1965 and lives in Zalaegerszeg.
5. On 12 December 1996 the applicant filed for divorce.
6. After three remittals to the first instance court, the proceedings ended on 4 October 2005 when the Supreme Court rejected the parties’ petition for review, after the lower instances had pronounced the parties’ divorce, granted the custody of the couple’s son to the applicant. The father’s right of access was also regulated and the matrimonial property divided, allowing the applicant and the son to stay in the couple’s flat against compensation payable to the ex-husband for his share of the flat. The proceedings thus lasted almost eight years and ten months for three levels of jurisdiction.
7. The first-instance decision adopted after the last remittal allowed the customary 10% deduction from the value of the flat on account of the mother’s statutory obligation to lodge her minor son in it, which would have reduced her debt to the ex-husband by 413,650 Hungarian forints (HUF). However, the second-instance court annulled this advantage because it miscalculated the son’s age, holding that he was no longer a minor. The Supreme Court rejected the applicant’s objection to the latter ruling as the son in the meantime had become of age.
VIOLATED_ARTICLES: 6


ITEMID: 001-4500
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: UGUR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, who was born in 1944, is a Turkish citizen resident in İzmir.
A. Particular Circumstances of the Case
The applicant was a television producer at the Turkish Radio and Television Institution (TRT) at the time of the events. He was in charge of a weekly television show in which approximately thirty or forty artists performed each week.
In July 1993 the TRT inspectors started an investigation into the allegations that the applicant had extorted a certain amount of money from the artists who performed in the show.
On 17 September 1993 the TRT management decided that the applicant should be dismissed on the ground of breach of the TRT Personnel Regulations.
The TRT also filed a criminal complaint against the applicant with the Public Prosecutor attached to the İzmir Assize Court. On 11 November 1993 the public prosecutor started criminal proceedings in the İzmir Assize Court pursuant to Section 209 of the Criminal Code, alleging that the applicant had committed extortion. In his indictment, the public prosecutor accused the applicant of extorting money from six of the artists who had performed in his show between the years 1989 and 1993.
The İzmir Assize Court heard oral evidence from many of the artists who had performed in the show. The applicant requested the İzmir Assize Court to hear another witness, O.G., an artist who had performed in his show, but on 25 January 1994 the court refused to hear this witness on the ground that O.G. was not connected with the case at hand and that her evidence could not be expected to contribute to the elucidation of the relevant facts of the case.
In its judgment of 28 April 1994 the İzmir Assize Court, after hearing oral evidence from the witnesses called by the prosecution and the defence, found that the applicant had borrowed money from the artists who had performed in his show and did not pay his debts back until he was brought before the court. The court also stated that it could not establish any facts to show that the applicant had forced these people to pay a sum of money. Consequently, it convicted the applicant of abuse of office under Section 240 of the Criminal Code and sentenced him to one year's imprisonment, a fine of 160,000 Turkish Lira and three months' disqualification from holding public office.
On 27 December 1994 the applicant's appeal to the Court of Cassation was rejected. The Court of Cassation held that the applicant's conviction and sentence was in accordance with the Turkish Criminal Code.
On 14 April 1995 the Court of Cassation dismissed the applicant's request for rectification of the decision of 27 December 1994.

B. Relevant Domestic Law
Sections 209 and 240 of the Criminal Code are set out below.
Section 209
(Translation)
“ Any public officer who, in abuse of his title or office, wrongfully compels a person to pay a sum of money or to provide or promise any other benefit either to himself or to a third party, shall be sentenced to heavy imprisonment for not less than five years.”
Section 240
(Translation)
“Any person who is a public officer and abuses his office in any manner other than that defined in this Code, shall be sentenced to imprisonment of not less than six months but not more than three years depending upon the gravity of the offence.”


ITEMID: 001-58900
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF JABARI v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient
JUDGES: Georg Ress
TEXT: 9. In 1995, at the age of 22, the applicant met a man (“X”) in Iran while attending a secretarial college. She fell in love with him and after some time they decided to get married.
10. However, X’s family was opposed to their marriage. In June 1997 X married another woman. The applicant continued to see him and to have sexual relations with him.
11. In October 1997 the applicant and X were stopped by policemen while walking along a street. The policemen arrested the couple and detained them in custody as X was married.
12. The applicant underwent a virginity examination while in custody. After a few days she was released from detention with the help of her family.
13. In November 1997 the applicant entered Turkey illegally. In February 1998 the applicant went to Istanbul, from where she tried to fly to Canada via France using a forged Canadian passport.
14. When the applicant arrived at the airport in Paris, the French police found her to be in possession of a forged passport.
15. On 4 February 1998 the applicant was put on a plane for Istanbul. Following her arrival at Istanbul Airport at 1 a.m. on 5 February 1998 she was arrested by policemen on the ground that she had entered Turkey using a forged passport. Her passport was sent for examination.
16. On 6 February 1998 the applicant was transferred from a police station inside the airport to the Aliens Department of the Istanbul Security Directorate. She was brought before the Bakırköy public prosecutor on the ground that she had entered Turkey using a forged passport in contravention of the Passport Act 1950. The public prosecutor ordered her release, finding she had not entered Turkey of her free will. The applicant was handed over to the Istanbul Security Directorate with a view to her deportation. When the applicant realised that she was going to be sent to Iran she told the Aliens Department that she was an Iranian national. The applicant lodged an asylum application with the Aliens Department. The police rejected her application as it had been submitted out of time. The applicant was informed that under section 4 of the Asylum Regulation 1994 she should have lodged her application for asylum within five days of her arrival in Turkey.
17. According to the applicant, she was held in detention at the Aliens Department until 26 March 1998. Thereafter, following the intervention of the Ankara branch office of the United Nations High Commissioner for Refugees (UNHCR), she was accommodated at a hotel in Istanbul.
18. On 12 February 1998 a staff member of the UNHCR, with the permission of the authorities, interviewed the applicant about her asylum request under the 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”). On 16 February 1998 the applicant was granted refugee status by the UNHCR on the basis that she had a well-founded fear of persecution if removed to Iran as she risked being subjected to inhuman punishment, such as death by stoning, or being whipped or flogged.
19. On 8 March 1998 the applicant lodged an application with the Ankara Administrative Court against her deportation. She also asked for a stay of execution of her deportation.
20. On 16 April 1998 the Ankara Administrative Court dismissed the applicant’s petitions on the ground that there was no need to suspend her deportation since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant.
21. On 4 November 1998 the Ankara Administrative Court found that there was no actual risk of her being deported in view of the fact that she had been granted a residence permit pending the outcome of her application under the European Convention on Human Rights. The court found that it was not required to suspend the deportation order since no such order had yet been made.
22. Article 125 of the Turkish Constitution provides, inter alia:
“All acts or decisions of the authorities are subject to judicial review ...
If the implementation of an administrative act would result in damage which is difficult or impossible to compensate, and at the same time this act is clearly unlawful, a stay of execution may be decided upon, stating the reasons therefor ...”
23. Article 155 of the Constitution states, inter alia:
“The Supreme Administrative Court is the final instance for reviewing decisions and judgments given by administrative courts. It shall also be the first and last instance for dealing with specific cases prescribed by law. ...”
24. Article 5 of the Code on the establishment and duties of tax courts, administrative courts and regional administrative courts (no. 25765) provides, inter alia:
“Administrative courts deal with:
(a) actions for annulment
(b) administrative actions
(c) ...
except for those actions which are within the competence of tax courts and those which should be dealt with by the Supreme Administrative Court as a first-instance court.”
25. Article 25 of the Act on the Supreme Administrative Court provides:
“Final decisions rendered by the administrative courts and the tax courts, as well as final decisions rendered by the Supreme Administrative Court acting as a first-instance court may be appealed to and dealt with by the Supreme Administrative Court.”
26. Turkey has ratified the Geneva Convention and the 1967 Protocol thereto. It has exercised the geographic preference option under the 1951 Convention in order to limit the grant of refugee status to asylum-seekers from European countries. For humanitarian reasons, Turkey issues temporary residence permits to asylum-seekers from non-European countries who are recognised by the UNHCR as refugees pending their resettlement in a third country by that organisation.
27. The Ministry of the Interior issued a regulation on 30 November 1994 concerning asylum-seekers seeking asylum in Turkey or who are to be resettled in a third country. According to this Regulation, foreign nationals arriving in Turkey to seek asylum must submit their asylum application to the police within five days of their arrival in Turkey. Those who enter illegally are required to submit their application to the police at the border town nearest the point where they entered the country. Asylum-seekers entering the country legally may submit their application to the police in any city within five days of their arrival.
28. A person who enters Turkey illegally and does not apply to the Turkish authorities within five days of his or her entry cannot be accepted as a refugee.
29. Asylum requests are examined by the Ministry of the Interior. Non-European asylum-seekers who receive a positive decision may then submit their cases to the UNHCR for resettlement. The Ministry of the Interior considers the merits of an asylum application from the standpoint of Turkey’s obligations under the Geneva Convention and has regard to the opinions of the Ministry of Foreign Affairs and other relevant ministries and agencies. Foreigners whose requests are not accepted are liable to be deported by the local authorities.
30. An amendment was introduced to the 1994 Asylum Regulation in January 1999. According to the amendment, the five-day period in which to lodge an asylum request has now been increased to ten days. Furthermore, an asylum-seeker whose application has been refused may now appeal within fifteen days of the refusal to the competent governorship. The appeal is to be assessed by the superior of the official who took the initial decision to refuse asylum.
31. In its 1999 Annual Report, Amnesty International concluded that judicial punishments amounting to torture or cruel, inhuman or degrading punishment continued to be reported. Flogging was reportedly imposed for a wide range of offences, at times in conjunction with the death penalty or a custodial sentence. An Iranian woman, the co-accused of a foreign businessman, was reportedly sentenced to 100 lashes in October 1999 after she was convicted of illicit sexual relations. It was unknown whether the sentence was carried out. In November 1999 an Iranian national was acquitted after he escaped from the pit in which he had been buried to the waist in order to be stoned to death in the town of Lahijan. He had been sentenced to death for adultery.
32. The 1999 Country Reports on Human Rights Practices, released on 25 February 2000 by the US Department of State, mention, with reference to Iran, that harsh punishments are carried out, including stoning and flogging. Article 102 of the Islamic Penal Code details the methods authorities should follow when conducting a stoning: “The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.” According to press accounts, a man was stoned to death in April 1999 in the town of Babol, which borders the Caspian Sea. He was alleged to have killed three of his own sons. Prior to the stoning, he received sixty lashes. The first stone was cast by the judge who sentenced him to death. The law also allows for the relatives of murder victims to take part in the execution of the killer.
VIOLATED_ARTICLES: 13
3


ITEMID: 001-59612
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF JEDAMSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 9. On 22 December 1992 the Łódź Bank of Development (Łódzki Bank Rozwoju), submitting a bill of exchange payable to bearer which required the applicant to pay on demand 19,777,167,300 old Polish zlotys (PLZ), asked the Łódź District Court (Sąd Rejonowy) to issue an order for payment against him.
10. On 14 January 1993 the court granted the plaintiff’s request and ruled that the applicant was to pay the sum in question within seven days from the date of service of the order or, alternatively, within the same time-limit, to lodge an appeal against the said order.
11. On 23 January 1993 the applicant lodged an appeal with the Łódź District Court, submitting that the order was premature since the bill of exchange had been endorsed by him to secure the payment of a loan which, according to the terms of the relevant agreement, was to have been paid off on 31 December 1992. He also requested the court to stay the enforcement of the order.
12. On 28 January 1993 the plaintiff asked the court to issue a writ of execution in respect of the order of 14 January 1993. On 1 February 1993 the court issued a provisional writ of execution (i.e. under which assets, by way of security, could be attached to protect claims). The final writ of execution was made on 12 May 1993. Subsequently, on an unknown date, the plaintiff asked the court to issue two further such writs, maintaining that it had to institute enforcement proceedings against the applicant before several different courts because his real and personal property was situated in various towns.
13. On 12 October 1993 the case was referred to the Łódź Regional Court (Sąd Wojewódzki) which, under the rules of civil procedure governing jurisdiction, was competent to deal with the case in ordinary civil proceedings.
14. On 20 October 1993 the Łódź Bank of Development was taken over by the BIG Bank SA (Bank Inicjatyw Gospodarczych SA) and, from that date onwards, the BIG Bank SA replaced it as a plaintiff in the proceedings.
15. Later, from 8 March to 29 August 1994 the proceedings were stayed at the parties’ joint request.
16. On 23 September 1994 the Łódź Regional Court issued one writ of execution and dismissed the remainder of the plaintiff’s application. On 23 November 1994, on the applicant’s appeal, the Łódź Court of Appeal (Sąd Apelacyjny) upheld the first-instance decision. On an unknown later date the case-file was transmitted to the Regional Court.
17. On 16 June 1995 the Regional Court ordered that evidence be obtained from an expert in banking accountancy. The expert submitted his report to the court on 29 August 1995. After having served copies of the report on the parties, the court listed a hearing for 20 December 1995.
18. At that hearing, on the applicant’s request, the court stayed the proceedings. The applicant produced documents showing that, in the meantime, on 13 December 1994, his wife had sued both parties to the proceedings in the Łódź Regional Court. She was seeking the annulment of the relevant loan agreement. The plaintiff bank first unsuccessfully opposed the application for a stay and then appealed against the decision staying the proceedings. The appeal was rejected on 11 March 1996.
19. Meanwhile, on 26 December 1995, the applicant asked the court to lift the stay, in his words, “immediately”. He maintained that the claim for payment against him could be determined without a prior ruling on whether or not the loan agreement had validly been concluded.
20. On 9 February 1996 the applicant asked the Regional Court to resume the proceedings. On 15 April 1996 the court refused to lift the stay because it considered that the determination of the applicant’s case depended on the outcome of the proceedings relating to the annulment of the loan agreement and that there was, therefore, a sufficient basis for the stay, as defined by Article 177 § 1 (1) of the Code of Civil Procedure. The applicant did not contest this decision.
21. During the stay of the proceedings the trial court made several procedural orders. It stayed the enforcement of the order of payment (by a decision of 13 May 1996 which was upheld on appeal on 12 July 1996). It dealt with the applicant’s request for the order securing the claim to be amended and rendered in that respect a decision on 2 December 1996. It also ruled on two plaintiff’s requests for the decision staying the enforcement of the order of payment to be quashed (giving decisions of 15 April 1996 and 29 January 1998 respectively).
22. On 13 October 1998 the applicant informed the court that the proceedings concerning his wife’s claim for declaring the loan agreement null and void had been terminated. He asked the court to resume the proceedings and to fix a hearing date.
23. The court listed a hearing for 17 February 1999. On 23 February 1999 it gave judgment and awarded the plaintiff 1,954,097.49 new Polish zlotys (PLN). It also awarded the costs of the proceedings against the applicant. Both parties appealed.
24. On 19 October 1999 the Łódź Court of Appeal rejected the plaintiff’s appeal as it considered that it had no legal interest in challenging the judgment granting the relief requested. It further dismissed the applicant’s appeal.
25. On 2 December 1999 the applicant filed a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). According to information obtained by the Court from the registry of the Civil Chamber of the Supreme Court, the applicant’s case was registered under file no. II CKN 25/00 and his cassation appeal was dismissed on 26 January 2001.
26. On 11 February 1993, acting under the provisional writ of execution of 1 February 1993 (see also paragraph 12 above) and on a request by the creditor, i.e. the Łódź Bank of Development, the Bailiff of the Warsaw District Court (Komornik Sądu Rejonowego) made an order attaching the applicant’s shares in the Bank of Development of Export (Bank Rozwoju Eksportu) and cash (an unknown sum) deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.), by way of security for the creditor’s claim for payment of PLZ 19,777,167,300 pending in the Łódź Regional Court. On 26 February 1993 the applicant lodged a complaint against the actions taken by the bailiff (skarga na czynności komornika), relying on Article 767 of the Code of Civil Procedure. On 10 September 1993 the court dismissed the applicant’s complaint.
27. On 8 September 1993, acting under the final writ of execution of 12 May 1993 (see also paragraph 12 above) and on a request by the BIG Bank SA, the Bailiff of the Warsaw District Court instituted enforcement proceedings against the applicant, with a view to selling the assets attached on 11 February 1993. According to the applicant, the total value of the attached assets was about 2,000,000 US dollars, that is to say, some 7,000,000 Polish zlotys (PLN).
28. On 20 September 1993 the applicant, again relying on Article 767 of the Code of Civil Procedure, made the second complaint against the actions taken by the bailiff in the enforcement proceedings to the Warsaw District Court. He submitted that those actions had been incorrect and unlawful since the bailiff had enforced the order for payment of 14 January 1993 against matrimonial property, whereas the final writ of execution had been issued against the applicant alone. Moreover, the civil claim in question had not yet been determined as the relevant proceedings were pending before the Łódź Regional Court because he had appealed against the order for payment of 14 January 1993. He, therefore, asked the court to quash the attachment and to stay the enforcement proceedings.
29. Shortly afterwards, the applicant’s case was registered in the Warsaw District Court under file no. II Co 248/93.
30. On 2 April 1994 the court decided that information be obtained as to whether the applicant had appealed against the order for payment of 14 January 1993 and whether in the relevant proceedings any decision staying the enforcement of that order had been made.
31. On 24 June 1994 the court ordered that the applicant’s case be joined with the case registered under file no. II Co 47/94 (the latter case concerned the creditor’s (the BIG Bank SA’s) request for the applicant’s attached shares to be sold on the Warsaw Stock Exchange) and assigned to the judge-rapporteur dealing with that case. On 18 July 1994 the court quashed its previous order and decided that the joinder of the cases be reversed, that is, that the case no. II Co 47/94 be joined with the applicant’s case and assigned to the judge-rapporteur dealing with the applicant’s case. On 17 October 1994 the cases were assigned to another judge because the previously appointed rapporteur had resigned.
32. On 8 February 1996 the Warsaw District Court, sitting in camera, rejected the applicant’s complaint of 20 September 1993. The court considered that the applicant was again challenging the actions taken by the bailiff on 11 February 1993, in particular the attachment order made by the bailiff on that day. The Court went on to find that the complaint against the attachment order had already been examined, and finally dismissed, by the same court on 10 September 1993. Moreover, in the court’s opinion, the applicant had clearly lodged his second complaint out of the seven-day time-limit prescribed by Article 767 of the Code of Civil Procedure. In any event, the Court added, the matter had finally been adjudicated on 10 September 1993 and, according to the principle of res iudicata, the second complaint had to be rejected on formal grounds. A copy of that decision was served on the applicant on 21 March 1996.
33. On 28 March 1996 the applicant appealed to the Warsaw Regional Court, submitting that the court of first instance had manifestly confused his two complaints: the complaint of 26 February 1993 against the attachment of his shares ordered by way of security and that of 20 September 1993 against the actions taken by the bailiff (i.e. those taken with a view to selling the attached shares) on the basis of the final writ of execution in the subsequent enforcement proceedings. Later, a copy of the applicant’s appeal was served on the creditor, which lodged a reply to the appeal on 6 May 1996.
34. On 18 July 1996 the Warsaw Regional Court, sitting in camera, quashed the contested decision and remitted the case to the District Court. The appellate court acknowledged that the lower court had failed to note that the applicant had filed two complaints, complaints which concerned two evidently separate actions taken by the bailiff.
35. On 27 December 1996 the Warsaw District Court, relying on the principle of res iudicata, refused to examine the complaint in so far as it amounted to the objection to the attachment order of 14 February 1993. It dismissed the remainder of the complaint, finding that the arguments raised by the applicant, in particular those concerning the enforcement of the order for payment while the civil dispute over the same claim was pending, had to be rejected. It found that the bailiff’s actions had been correct and lawful as he had acted under the valid writ of execution and the means of enforcement applied by him had a legal basis.
36. On 21 April 1997, on the applicant’s appeal, the Warsaw Regional Court upheld the first-instance decision.
37. Pursuant to Article 492 of the Code of Civil Procedure, an order for payment, if issued on the basis of a bill of exchange, is enforceable notwithstanding that a defendant has appealed against it, and that proceedings relating to the final determination of the claim arising from the endorsement of the bill are still pending.
A district court is competent to issue an order for payment; however, on an appeal by a defendant, the case may subsequently be referred to a regional court if, in view of the value of the claim, that court is competent to deal with the case in ordinary civil proceedings.
38. Under Article 767 et seq. of the Code of Civil Procedure a debtor may lodge a complaint against any action taken by a bailiff in enforcement proceedings. He may, in particular, seek a ruling as to whether the bailiff’s actions were correct, i.e. taken in accordance with a writ of execution, and lawful, i.e. whether the means of enforcement applied in a given case were provided by law. Such a complaint is examined by a district court under the provisions of Volume II of the Code of Civil Procedure relating to enforcement proceedings.
39. Under Article 173 et seq. of the Code of Civil Procedure the court may stay civil proceedings either ex officio or at a party’s request.
Article 177 § 1 (1) provides:
“1. The court shall ex officio stay the proceedings:
(1) if the determination of the case depends on the outcome of other pending civil proceedings;”
Article 180 § 1 of the Code provides, in so far as relevant:
“1. The court shall ex officio resume the proceedings if the reason for staying them no longer exists, in particular if:
...
(4) a final decision has been given in the proceedings on whose outcome the determination of the case depends, however, if circumstances so require, the court may resume the proceedings before [such a final decision is given].”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102260
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ARSLANTAY v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 3. The applicant was born in 1986 and lives in Adana.
4. Subsequent to his expulsion from a military academy due to his health problems, the applicant brought a case before the Supreme Military Administrative Court against the Ministry of Defence (“the Ministry”) for damages. The applicant argued that the alleged delay in the diagnosis of his medical condition had led to his unfair expulsion, which had inflicted pecuniary and non-pecuniary damages on him.
5. On 24 November 2004 the Supreme Military Administrative Court held a hearing, where it heard the parties and the opinion of the principal public prosecutor, which had previously been submitted to the court in writing. On 21 September 2005, relying on the findings of medical experts, the Supreme Military Administrative Court refused the applicant’s claim for damages. On 23 November 2005 it dismissed the applicant’s rectification request.
6. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75287
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DURGUN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Ali Cemal Zülfikar, a lawyer practising in Elazığ.
The facts of the case, as submitted by the applicants, may be summarised as follows.
Until 1994 the applicants lived in Bilekli village, in the Hozat district in Tunceli province, where they own property. It is to be noted that the title deeds to the property that Polat Ferhat, Mevlit Ceviz and Kemal Durgun used in Bilekli bear their mothers’ and fathers’ names.
In October 1994 security forces forcibly evacuated Bilekli on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live.
On 20 October 1994 Kemal Durgun’s father filed a petition with the District Governor’s office in Hozat and requested redress for the damage he suffered and sought permission to return to their village.
On 1 December 1994 Kemal Durgun’s father filed a petition with the Prime Minister’s office requesting provided with government aid and asking the authorities to expropriate his property.
On 14 January 1995 Kazım Demirkılıç filed a petition with the Ministry of Public Works and Settlement requesting permission to return to his village and compensation for the damage he suffered.
On 20 January 1995 the Governor’s office in Tunceli sent a letter to Kemal Durgun’s father and informed him about the aid supplied by the District Governor’s office in Hozat. They further noted that there was no legal ground for expropriation of property.
On 11 November 2000 Kemal Durgun filed a petition with the District Governor’s office in Hozat requesting redress for the damage he suffered and seeking permission to return to his village.
On 11 and 20 November 2000 the applicants lodged petitions with the Public Prosecutor’s office in Hozat complaining about the burning down of their house by security forces.
On 13 February 2001 the Public Prosecutor sent a letter to the applicants stating that he had issued a decision of non-jurisdiction and had sent the case- files to the Administrative Council in Hozat. The Public Prosecutor further noted that the latter authority had decided not to conduct an investigation into the applicants’ allegations as the perpetrators of the alleged acts could not be identified.
Until 1994 the applicants lived in Halitpınar village, in the Ovacık district in Tunceli province, where they own property. It is to be noted that Kamber and Veli Çelik did not submit any certificate to the Court attesting their ownership of the property in Halitpınar.
In October 1994 security forces forcibly evacuated Halitpınar on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live.
On an unspecified date the applicants lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their house by security forces.
On 9 December 1994 the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık.
On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicants’ allegations as the perpetrators of the alleged acts could not be identified.
On 16 August 1995 and on 2 February 1999 the headman of Halitpınar village, Süleyman Toprak, filed petitions with the President’s office, the General Headquarters of Refah Partisi (Welfare Party), the Prime Minister’s office, the Presidency of the Grand National Assembly of Turkey, the Ministry of Public Works and Settlement, the Governor’s office in Tunceli, the District Governor’s office in Ovacık and the Emergency Regional Governor’s office on behalf of the residents of Halitpınar village and asked the aforementioned authorities to allow the residents to return to their village.
He further requested compensation for the damage they suffered. He received no response.
On 18 February 1998 Cafer Toprak filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.
On 25 June 1998 the District Governor’s office in Ovacık sent the following reply to him:
“... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved.
Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...”
On an unspecified date Cemal Toprak, Kamber Çelik and Veli Çelik filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village.
On 10 June 2000 the District Governor’s office in Ovacık sent the following reply to the applicants:
“Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.”
Until 1994 the applicants lived in Karaoğlan village, in the Ovacık district in Tunceli province, where they own property. It is to be noted that Ms. Güllü Gülerdoğan did not submit any certificate to the Court attesting her ownership of the property in Karaoğlan.
In October 1994 security forces forcibly evacuated Karaoğlan on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live.
On 27 July 1995 and on 4 August 1995 Hıdır Gülerdoğan filed petitions with the District Agriculture Directorate (İlçe Tarım Müdürlüğü) in Ovacık and the Governor’s office in Tunceli and requested loan for livestock.
On 11 September 1995 Güllü Gülerdoğan and Hıdır Gülerdoğan filed petitions with the Governor’s office in Tunceli requesting permission to return to their village.
On 11 October 1995 the Governor’s office in Tunceli sent the following reply to the applicants:
“Your petition containing a request of permission to return to your village has been considered by the District Governor’s office. You will be informed about the developments by the headman (muhtar) of the village.”
On 18 February 1998 Hıdır Gülerdoğan filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.
On the same day the District Governor’s office in Ovacık sent the following reply to the applicant:
“... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved.
Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...”
On 16 August 1998 and on 2 February 1999 the headman of Karaoğlan village, Düzgün Yıldız, filed petitions with the President’s office, the General Headquarters of Refah Partisi (Welfare Party), the Prime Minister’s office, the Presidency of the Grand National Assembly of Turkey, the Ministry of Public Works and Settlement, the Governor’s office in Tunceli, the District Governor’s office in Ovacık and the Emergency Regional Governor’s office on behalf of the residents of Karaoğlan and requested the aforementioned authorities to allow the residents to return to their village.
He further requested compensation for the damage they suffered. He received no response.
On an unspecified date the applicants filed petitions with District Governor’s office in Ovacık requesting permission to return to their village.
On 10 June 2000 the District Governor’s office in Ovacık sent the following reply to the applicants:
“Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.”
On 20 August 2004 the representative of the applicants informed the Court that Mr Fedi Gülerdoğan had died and his heirs, Fındık Gülerdoğan, Cafer Gülerdoğan, Sevgi Canpolat and Serdar Güneş wish to pursue the application.
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


ITEMID: 001-108397
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ARUTYUNYAN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1970 and lived until his arrest in Krasnodar.
6. In 2004 the applicant had two operations: a retinal laser coagulation of the left eye and amputation of toes of the right foot. In the same year, unsuccessful surgery led to the entire loss of sight in the applicant’s right eye. Two years later, he underwent a kidney transplantation. In August 2007 he was admitted to Krasnodar Regional Clinical Hospital no. 1 where he underwent a number of tests and received treatment for diabetes.
7. In 2008 the applicant’s hip joints were replaced with prostheses in the Heidelberg Town University Clinique in Germany. As follows from a letter issued on 22 July 2008 by the head of the Clinique Medical Service, the applicant was required to make multiple monthly visits to the Clinique for check ups and medical treatment. The first such appointment was scheduled for August 2008.
8. Extract no. 46707 of the applicant’s medical record drawn up on 22 December 2008 by a medical commission in Krasnodar Regional Clinical Hospital no. 1 reads as follows:
“[The applicant]... is a disabled person [officially recognised as having a] 1st degree disability; [he] underwent inpatient treatment from 12 to 22 December 2008.
Clinical diagnosis: subcompensated type 1 insular diabetes, severe state. Diabetic micro- and macroangiopathy. Diabetic glomerulosclerosis. End stage chronic renal failure, terminal stage.
Diabetic retinopathy of both eyes; retinal detachment of the right eye. Dysmetabolic encephalopathy. Gastroenteropathy. Myelotoxic anaemia. Polyneuropathy. Polyserositis. Diabetic foot. Condition after amputation of the 4th and 5th toes on the right foot. Allotransplantation of a donor kidney (November 2006). Permanent immunosuppression therapy. Osteochondritis deformans juvenilis of hips. Condition after total hip replacement. Acute respiratory disease.
Because of his main illness and associated complications, the state of the patient’s health is serious ...
...
The patient was informed about the seriousness of his condition and was warned that if he failed to comply with the strict fluid balance, diet, mandatory lab control, [and in the absence of] strict and regular use of medicines (particularly the immunosuppressive drugs) kidney transplant rejection and diabetes could occur.”
9. On 1 February 2009 the Novorossiysk Town Investigative Department of the Krasnodar Regional Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion of involuntary manslaughter.
10. Eleven days later, the applicant was arrested. According to the prosecution authorities, on 1 February 2009 in a local restaurant the applicant, a prominent criminal leader, organised an assault in which five individuals were severely injured. One of the victims died as a result.
11. On 14 February 2009 the applicant’s detention on remand was authorised and he was placed in temporary detention facility no. 5 in Krasnodar. The facility occupied the ground and last floors of a four-storey building constructed in 1938. The administrative offices and technical facilities were located on the ground floor of the building while the cells were located on the fourth floor. The building was not equipped with a lift.
12. On the applicant’s admission, the acting director of the facility issued a report allowing the applicant to have a number of objects usually prohibited for detainees. The list included a wheelchair, a glucometer, a tonometer, specific medicines, disposable masks, napkins, an additional mattress and a cushion for the wheelchair.
13. A week later the applicant was charged with having organised aggravated involuntary manslaughter.
14. On 21 February 2009 the applicant’s lawyers lodged a request with a senior investigator of the Krasnodar Regional Investigative Department, asking for the applicant to be transferred to a specialised prison medical facility and to have him examined by a number of medical specialists practising in the Krasnodar Region. They alleged that the detention facility was unequipped to accommodate the applicant’s needs. In support of their request the lawyers relied on medical certificates issued prior to the applicant’s arrest and argued that the applicant was a seriously ill person whose state of health was bound to deteriorate drastically in the conditions of the detention facility.
15. The investigator dismissed the request on the same day, finding that prison doctors had examined the applicant on his admission to temporary detention facility no. 5 and had found him fit to be detained in a regular detention facility and to participate in investigative procedures. The investigator also stressed that the applicant was under constant medical supervision by prison doctors and that he received medical advice from other qualified and experienced medical specialists. According to the investigator, the applicant received the medicines necessary to maintain his health.
16. On 24 February 2009 the head of the Krasnodar Regional Nephrological Centre (hereinafter – the Centre), assisted by another doctor from the Centre, examined the applicant. They found that, in addition to the illnesses listed in extract no. 46707 drawn up on 22 December 2008, the applicant suffered from gonarthrosis, cardiac dropsy, secondary hyperparathyroidism, hyperuricaemia, hypercholesteremia, viral hepatitis type C and chronic cytomegalovirus [salivary gland virus] infection. The doctors also concluded that the applicant’s diabetes was in the decompensation phase. They laid down a long list of recommendations to be followed, medical tests and examinations to be performed and drug regimens to be complied with, indicating, inter alia, the frequency and dosage of each medicine prescribed to the applicant.
17. In March 2009 the applicant’s lawyers, relying on extensive medical evidence, including extract no. 46707 from the applicant’s medical history, complained to the Oktyabrskiy District Court about the investigator’s refusal to admit the applicant to a prison hospital. On 6 March 2009 the lawyers amended their claims, citing paragraph 9 of Decree no. 54 issued by the Government of the Russian Federation on 6 February 2004, by virtue of which individuals suffering from diabetes whose 24-hour dose of insulin exceeds 60 units may be relieved from serving sentences in correctional institutions. The counsel argued that the applicant’s 24-hour regimen required 71 insulin units and therefore his detention in a regular detention facility ran contrary to the domestic legal requirements.
18. The applicant’s medical history, submitted by the Government, shows that on 5 March 2009 he refused to submit to blood glucose level testing and to take an evening dose of prescribed medicines, including insulin, arguing that his treatment was inadequate. Between 6 and 20 March 2009 the applicant occasionally refused to take an increased dosage of medicines, complaining about side-effects such as nausea and fatigue.
19. On 10 March 2009 a medical assistant of temporary detention facility no. 5 issued a medical certificate describing the applicant’s health. The relevant part of the certificate read as follows:
“[The applicant] does not have any complaints at the time of the examination.
...
2. Objective examination data: At the time of the examination [the applicant’s] state of health is satisfactory [and] corresponds to his existing illnesses ...
3. Diagnosis: subcompensated type 2 insular diabetes; serious condition; [the applicant is receiving] insulinotherapy. Allotransplantation of a donor kidney (November 2006).
4. Conclusion: no restrictions to [the applicant’s] detention in temporary detention facility ...”
The applicant submitted that no medical tests or analyses had been performed during the examination on 10 March 2009. A simple observation by “three women wearing white coats” had resulted in a finding that his illnesses were not an obstacle to his detention in the detention facility.
20. On 11 March 2009 the Oktyabrskiy District Court of Krasnodar dismissed the lawyers’ complaint, repeating verbatim the text of the investigator’s decision of 21 February 2009. In addition, the District Court noted that a medical commission had confirmed the applicant’s diagnoses but noted that he did not need urgent medical assistance and that his state of health did not preclude his participation in investigative procedures. The District Court concluded that the applicant could be effectively provided with medical assistance and treatment in the temporary detention facility.
21. The applicant’s lawyers appealed.
22. On 20 March 2009 the applicant went on a hunger strike and refused to take his medicines, notifying the authorities that the hunger strike was his last attempt to draw their attention to his situation. Three days later the applicant’s lawyers asked a senior prosecution investigator to authorise a complex medical examination of the applicant by specialists of the Health Ministry of the Krasnodar Region and to transfer him to a prison hospital. Similar requests were sent by those lawyers to various domestic authorities. The lawyers also complained about the conditions of the applicant’s detention, in particular the absence of daily outdoor recreation and physical exercise due to the impossibility for the applicant to descend in his wheelchair from the fourth floor of the detention facility, where his cell was, to a recreation yard.
23. As follows from the applicant’s medical record, on 24 March 2009 he resumed taking the prescribed medicines and stopped his hunger strike. Between 10 and 29 April 2009 the applicant again refused to take his medicines, complaining of a rapid deterioration in his health and an absence of adequate medical attention.
24. On 22 April 2009 the Krasnodar Regional Court upheld the decision of 11 March 2009, endorsing the District Court’s reasoning.
25. A week later a medical commission comprising medical specialists of the detention facility and doctors from the Centre examined the applicant and issued the following report:
“Having studied the health complaints, the medical history, objective data and results of the medical examination ..., the commission is bound to confirm that [the applicant’s] kidney transplant has been rejected as a result of his refusal to take prescribed immunosuppressants.
The commission’s attention was drawn to the fact that despite numerous discussions about the consequences of such a refusal, [the applicant] firmly continued refusing to take the above-mentioned medicines. He also stated that he would refuse any treatment provided in detention facility no. 5 in respect of any complications arising from his refusal [to take the medicines].
[The applicant] stated that he had refused to take medicines prescribed by the doctors from the Centre because he considered that he had not received effective medical assistance in respect of his complaints about toothache, pain in the area of his hip replacements and problems with his eyes.
In an efficient manner, [the applicant] was once again informed that the deterioration of his health was entirely due to his intentional refusal to take the medicines (immunosuppressants) prescribed by the specialists from the Centre and did not result from any other illnesses.
The commission’s conclusion is as follows:
The final diagnosis is:
Type 2 insulin diabetes in an advanced form, [the patient is receiving] insulinotherapy. Diabetic nephropathy, nephroangiosclerosis, chronic renal failure [in the end stage], condition after the donor kidney transplant (2006). Kidney transplant rejection crisis on 28 April 2009 caused by an intentional refusal to take immunosuppressants.
Diabetic proliferative retinopathy, condition after surgery on the retinal detachment of the right eye, partial massive hematopsia of the left eye, condition following laser coagulation of the left eye.
Diabetic angiopathy of the vessels of the lower extremities, diabetic foot, condition following the amputation of the fourth and fifth toes of the right foot.
Condition following complete hip replacement (2008).
Morbid obesity (extreme condition).
It is imperative that [the patient] starts undergoing outpatient haemodialysis and resumes taking the necessary medicines, in particular, immunosuppressants.
[The applicant] was offered an outpatient course of the haemodialysis which is to be administered by specialists from the Centre with special medical equipment in [detention facility] no. 5. He was also notified that his refusal to take [medicines], irrespective of his decision to undergo haemodialysis, would lead to a full rejection of the transplant.
Following this discussion [the applicant] gave his firm consent to undergo haemodialysis [and] a subclavian insertion and to take medicines in accordance with the course of immunosuppressants prescribed.
Due to the fact that [the applicant’s] eyesight is very poor, a text of the document confirming his consent to undergo haemodialysis [and] a subclavian insertion and to take medicines in accordance with the course of immunosuppressant treatment prescribed was prepared and read out in the presence of the members of the commission and was signed by [the applicant].”
26. On 30 April 2009 the applicant had his first session of haemodialysis which was performed in a specially equipped room on the ground floor of facility no. 5. The haemodialysis was carried out by specialists from the Centre, as the prison doctors were not licensed to perform the procedure. According to medical documents provided by the Government, the applicant received haemodialysis at least once every two days, with each session lasting from four to six hours. Prison medical personnel examined the applicant daily, recording his blood pressure, body temperature and blood glucose level, monitoring the fluctuation of his body weight (between 149 and 136 kilograms), controlling his intake of insulin, adjusting the drug regimen to meet his needs, and so on.
The medical documents show that the applicant frequently underwent various X-ray exams and ultrasound scans, and was taken to the Centre and a civil hospital for clinical testing and examinations by various medical specialists. He also underwent a number of minor operations involving insertion and replacement of catheters and endured lengthy procedures, lasting for hours at a time, required to administer medicines intravenously. The medical personnel of the detention facility consulted specialists from the Centre on a daily basis, including its head, for advice on adjusting the applicant’s treatment to the changes in the state of his health and to his complaints.
27. In the meantime, on 9 April 2009 the Oktyabrskiy District Court extended the applicant’s detention until 12 June 2009, having considered that the gravity of the charges, as well as the applicant’s liability to abscond, re-offend and obstruct justice warranted such an extension. On 12 June 2009 his detention was extended for an additional two months, until 12 August 2009, with the District Court using identical reasoning to that in its decision of 9 April 2009. The detention order of 12 June 2009 became final on 8 July 2009 when the Krasnodar Regional Court concluded that the District Court had correctly linked the applicant’s liability to abscond and interfere with the investigation to the gravity and the character of the charges against him.
28. On 11 August 2009 the Oktyabrskiy District Court again extended the applicant’s detention for an additional two months, finding that the gravity of the charges against him, information about his personal history and his liability to abscond warranted the extension. Having heard a prison doctor and studied medical certificates issued by the medical personnel of the detention facility, the District Court also found that the applicant’s state of health was stable and did not preclude his detention in the temporary detention facility. The decision was upheld on appeal on 26 August 2009.
29. On 24 September 2009 the applicant’s scheduled haemodialysis session was interrupted due to the breakdown of the catheter. The catheter could not be replaced until the following day, when haemodialysis was resumed. On 5 October 2009 an ophthalmologist from the microsurgical department of the Regional Clinical Hospital, having examined the applicant and studied his medical history, found that given the deterioration of the applicant’s eyesight surgery had no prospects of success.
30. On 9 October 2009 the Oktyabrskiy District Court examined an investigator’s request for a further extension of the applicant’s detention until 24 November 2009. Having accepted the investigator’s request, the District Court ruled as follows:
“[The applicant] organised a particularly serious criminal offence, as a result of which [the] victim ... died and serious health damage was caused to Mr P. and Mr V.
Following an examination of [the applicant’s] personal history, it was established that on 20 June 1994 the Prikubanskiy District Court of Krasnodar had found him guilty of criminal offences proscribed by Article 218 § 2 and Article 224 § 1 of the RSFSR Criminal Code; the record of the criminal conviction had expired; previously [he] had been charged on a number of occasions with having committed criminal offences proscribed by Article 163 § 2 [and] Article 330 § 3 of the Russian Criminal Code; he was absolved from criminal responsibility on the basis of amnesty acts.
Taking into account the information pertaining to [the applicant’s] personal history and having regard to the serious nature of the criminal offence committed by [the applicant], the investigation rightfully considers that, if released, [the applicant] will take active steps to influence witnesses, victims and other parties to the criminal proceedings, and that [he] will destroy evidence or, by other means, obstruct the objective investigation in the case. Moreover, [the applicant] may flee the territory of the Russian Federation to avoid criminal responsibility, rendering his criminal prosecution impossible.
In this connection, the investigator concluded that there were no grounds to change the preventive measure [applied to the applicant] to one which did not involve him being isolated from society and being detained ...
The defence lawyers and [the applicant] argued against the investigator’s request. [They] considered that the investigation had not put forward any item of evidence showing that [the applicant] could influence the witnesses and victims or [that he] could obstruct the investigation in any other way. [They] asked to take into account the impossibility for [the applicant] to continue being detained as he was very ill and relied on a wheelchair for mobility. He had a kidney transplant which functioned poorly and underwent haemodialysis four times a week. [They] asked for the applicant to be provided with adequate medical assistance in a medical facility under doctors’ supervision.
Having studied the material presented [and] having heard the parties to the proceedings, the court finds that it is necessary to extend [the applicant’s] detention as [the applicant] is charged with having organised a particularly serious criminal offence, there is sufficient information to conclude that, if released, he may abscond during the investigation and trial or [he] may obstruct the criminal proceedings by other means. The investigator has still to perform a number of investigative procedures in the case.
history of the accused, who has been criminally charged before [and] who is the breadwinner for a minor child, confirm the court’s conclusion that it is impossible to change the preventive measure [applied to the applicant] to a more lenient one. The court is of the opinion that detention is the sole preventive measure corresponding to the requirements of the criminal proceedings and ensuring the thoroughness and objectivity of the pre-trial investigation having regard to the particular seriousness of the criminal offence committed by [the applicant].
The court was not provided with material evidence showing the presence of extenuating circumstances which could have been taken into account by the court when it determined the issue of the extension of [the applicant’s] detention.”
31. On 19 October 2009 the head of the Centre examined the applicant and issued the following conclusion: “[his] condition corresponds to the severity of the main and concomitant illnesses, in general [it] is stable and relatively satisfactory”.
32. The applicant’s lawyer requested a senior investigator of the Krasnodar Regional Investigative Department to transfer the applicant to a prison hospital, arguing that his health had continued to deteriorate in the absence of adequate medical assistance. Three days later the senior investigator dismissed the request, stating that the deterioration of the applicant’s health was the direct result of his refusal to accept medical assistance and to follow the recommendations given by the medical personnel of the detention facility. The senior investigator also noted that the current state of the applicant’s health was stable and did not call for his admission to a prison hospital.
33. Having decided to obtain an independent expert opinion on the applicant’s state of health, his lawyers submitted available medical records, including those drawn up in the detention facility, to the State-owned Scientific Research Institute of Transplantology and Artificial Organs in Moscow (hereinafter – the Institute).
34. On 12 November 2009 they received a letter from the head of the Kidney and Liver Transplants Department of the Institute, which, in so far as relevant, read as follows:
“... it is impossible to make a firm conclusion about [the applicant’s] state of health on the basis of the medical documents presented. However, it is plainly evident that at the present time the kidney transplant is not functioning and the patient’s life is supported by the haemodialysis prescribed. The non-functioning transplant may have to be removed if it is a source of intoxication. Another kidney transplantation is not warranted. Having regard to the severity of the [applicant’s] primary and corresponding illnesses, the presence of the non-functioning transplant, and [the applicant’s] detention in the temporary detention facility in the absence of adequate clinical instrumental laboratory control, there is a real risk that acute complications leading to [the applicant’s] death will develop. A full examination, preferably in a hospital, is advisable to determine the further course of medical treatment to be taken, namely, the provision of medicines and potential surgery.”
35. On 20 November 2009 the Oktyabrskiy District Court authorised a further extension of the applicant’s detention until 24 January 2010, finding that the grounds warranting his detention, including the gravity of the charges and the applicant’s liability to abscond, had not changed. The District Court concluded that the defence lawyers’ arguments pertaining to the applicant’s health did not outweigh the grounds calling for his detention.
36. On 3 and 15 December 2009 the District Court examined the lawyers’ requests for the applicant’s release and for his transfer to a medical institution respectively. Both requests were dismissed as the District Court considered that the applicant was receiving sufficient medical assistance in detention facility no. 5. A similar request for the applicant’s placement in a prison hospital was dismissed by the senior investigator on 16 December 2009.
37. In the meantime, on 9 December 2009 the applicant was examined by a cardiologist and a phlebologist from civil hospitals. He was diagnosed with ischemic heart disease, diabetic angiopathy and thrombosis of the lower extremities. Treatment was prescribed. A week later the applicant again experienced problems with the intravenous catheter, making it impossible for him to complete the haemodialysis scheduled for that day. In the following week, urgent consultations between the medical personnel of the detention facility and specialists from the Centre took place for the purpose of finding a solution to the problem. On 25 December 2009 four leading medical experts from the Centre and a civil hospital performed surgery on the applicant in the detention facility with a view to installing a twenty-centimetre central vein catheter. Following a number of unsuccessful attempts, the doctors were finally able to insert it. Three days later the applicant refused to undergo haemodialysis, complaining of pain in the area of the catheter insertion and extreme fatigue and weakness. On the following day, given the serious deterioration of his health, the applicant agreed to go down to the ground floor to undergo haemodialysis.
The applicant’s medical records show that whenever his catheter malfunctioned and was replaced, he was provided with a course of antibiotics to prevent infection.
38. On 25 December 2009 a prison physician examined the applicant and issued a medical certificate describing his state of health. The relevant part of the certificate reads as follows:
“Since the beginning of his detention in [detention facility no. 5] the patient has been under constant medical supervision; the level of glucose in his blood (before every meal), blood pressure, fluid balance, body temperature and other indicators are monitored daily. An examination of all the relevant biochemical blood parameters, including at cyclosporine level, and all additional medical examinations authorised by medical specialists (ultrasound scanning of the heart, vessels, abdominal cavity, kidneys ..., adrenal glands, bladder and prostate; X-ray examinations of the chest and hip joints, and electrocardiogram) are performed whenever necessary, but no less than once a week. On a number of occasions the patient has been examined by medical specialists (an endocrinologist, a urologist, a surgeon, a traumatologist-orthopaedist, an ophthalmologist, a vascular surgeon and a cardiologist) from municipal health institutions.
The patient is under ongoing supervision by doctors from the Nephrological Centre, who perform scheduled outpatient haemodialysis three or, if necessary, four times a week. On a number of occasions [the applicant] was examined by a specialist in kidney transplantology – Professor Ya., Doctor of Medicine, in the detention facility; [Dr Ya.] is also constantly informed of the results of the clinical supervision, and of complex biochemical and other examinations. Medical specialists regularly organise consultations with Dr Ya.’s participation (the most recent one [took place] on 15 December 2009); the course of future medical treatment and necessary diagnostic measures are determined during [those consultations].
The patient is also under constant supervision by an endocrinologist; the level of glucose in his blood is measured daily before every meal; a log is kept of the dosage of glycaemia [and] insulin [he receives]; [and] consultations about the insulin dosage regimen take place.
During his detention in [detention facility no. 5] [the applicant] constantly violated his dietary regimen [and] refused to keep a “dietary diary”; on a number of occasions [he] refused to take insulin and medicines; after 10 April 2009 he completely refused to take immunosuppressive medicines, which are necessary for his kidney transplant to function. [The applicant] willingly and knowingly impaired his health, despite regular discussions about the necessity of renewing the course of the immunosuppressive medicines and the patient’s awareness of the consequences of his refusal of the treatment ... As a result of those actions [the patient’s] kidney transplant stopped functioning and since 30 April 2009 [he] has been undergoing permanent haemodialysis, despite the fact that he has resumed taking medicines and begun complying with the [recommended] dietary regime.
The haemodialysis is performed by specialists of the Regional Nephrological Centre in a special cell in [detention facility no. 5]. [The applicant] is afforded an opportunity to rest for the necessary period of time in a special armchair after each scheduled session of haemodialysis. After the glucose level in his blood has been checked ..., with the warders’ help and in the presence of a medical specialist [the applicant] ascends a staircase to his cell with the wheelchair.
When ascending the staircase in small steps being held by the arms, [the applicant] rests in his wheelchair after every 2 or 3 flights of stairs for as long as necessary. If necessary, the above-mentioned parameters are measured. On the upper floor of the detention facility building [the applicant] is taken to his cell in the wheelchair, where he is examined by medical personnel if necessary.
...
Medical specialists – an endocrinologist, ophthalmologist, traumatologist-orthopaedist, vascular surgeon and specialists of the Nephrological Centre – consider that at the present time the patient’s health is stable, despite his existing serious chronic illness. [The applicant’s] health does not at present call for urgent medical assistance or inpatient treatment. The necessary medical and diagnostic procedures prescribed by medical specialists are performed in corpore and timeously.
Therefore, the deterioration of [the applicant’s] health was entirely caused by his willing and knowing actions. The administration of the detention facility and the medical unit of the detention facility, with the participation of medical specialists in the fields connected to [the applicant’s] illnesses, implemented an entire set of medical measures necessary to maintain [the applicant’s] health and to eliminate the consequences of his wilful actions. As a result of those measures [the applicant’s] state of health is stable and does not preclude his detention in [detention facility no. 5].”
39. In January and February 2010 the applicant received haemodialysis at least once every two days. On 14 January 2010 a surgeon was called in to examine the applicant in response to his complaints of severe pain in the right knee, which intensified during physical activity. The applicant was diagnosed with degenerative arthritis of the right knee joint and prescribed treatment. On 22 January 2010 he underwent another replacement of the catheter in the detention facility. Another replacement was carried out in the detention facility a month later.
40. In the meantime, in the beginning of January 2010 the prosecution authorities closed the investigation and transferred the case file to the trial court. On 21 January 2010 the Oktyabrskiy District Court scheduled the first trial hearing and held that the trial proceedings were to be conducted in camera because the applicant and his five co-defendants had criminal records and were liable to threaten witnesses and other parties to the proceedings. The District Court also examined the lawyer’s petition for the applicant’s release and dismissed it, finding that the applicant’s health did not preclude his detention on remand and concluding that “the preventive measure applied in respect of [the applicant] should remain unchanged”. However, it agreed to call two medical experts proposed by the defence to determine whether the applicant was in need of a complex medical examination or any specific medical procedures.
41. The applicant’s lawyers appealed, arguing that the applicant’s detention after 24 January 2010 had been unlawful, as the District Court had failed to extend his detention officially and its decision to dismiss the request for the applicant’s release could not substitute a proper detention order.
42. At the hearing on 28 January 2010 the lawyers again asked the District Court to release the applicant as there were no grounds for his continued detention. They also argued that the time-limit for the applicant’s detention had expired on 24 January 2010 and that his detention after that date had been unlawful as it was not covered by a proper legal order. A prosecutor lodged a counter-claim, asking to extend the applicant’s and his co-defendants’ detention until 11 July 2010. The District Court accepted the prosecutor’s request and collectively extended the applicant’s and his co-defendants’ detention until 11 July 2010, noting that there were no grounds for their release.
43. On 17 February 2010 the Krasnodar Regional Court upheld the decision of 28 January 2010, having dismissed the argument that the applicant’s detention between 24 and 28 January 2010 had been unlawful. While acknowledging that on 21 January 2010 the District Court had examined the matter at the applicant’s lawyer’s request, the Regional Court reasoned that the examination constituted a de facto extension of the detention.
44. On 18 May 2010 the Oktyabrskiy District Court found the applicant guilty as charged and sentenced him to eleven years’ imprisonment.
45. As follows from the applicant’s medical history submitted by the Government, since March 2010 the applicant has fully complied with the prescribed course of drug treatment and has occasionally failed to adhere to the dietary recommendations of the prison’s medical specialists. He occasionally refused to submit to examinations by medical specialists from the Centre and civil hospitals, citing extreme weakness, fatigue and his poor state of health as reasons for those refusals. In the second half of April 2010 the amount of haemodialysis was intensified, becoming a daily procedure. As follows from the applicant’s medical history, the only days when he did not have haemodialysis were the days on which trial hearings took place. In May 2010 the applicant was examined by a surgeon, an ophthalmologist, a urologist and an endocrinologist, who, having confirmed the previous diagnosis and having noted no major changes in the applicant’s state of health, concluded that it did not preclude his detention in facility no. 5.
46. According to the Government, since the first day of his detention the applicant had lodged at least thirty complaints with the director of the detention facility concerning the conditions of his detention and quality of medical care. He had also lodged numerous similar complaints with various State authorities, including the prosecutors’ offices and the Federal Security Service. In particular, the Government provided a copy of the applicant’s complaint of 29 May 2009 in which he informed the director of his refusal to continue haemodialysis in view of his inability to continue to endure the “inhuman treatment” accompanying that procedure. He asked to notify his relatives of his wish to be buried in Yerevan. The complaint bears a handwritten note by the facility director stating that a discussion with the applicant had resulted in his consent to go on with the treatment. The applicant’s repeated complaints to the facility director regarding his inability to descend the stairs for his haemodialysis sessions either resulted in the applicant agreeing to continue the haemodialysis or the director’s promise to consult engineers on the subject of equipping the facility with a mechanism which would allow the applicant to descend and ascend the stairs more easily. One of the applicant’s complaints to State authorities brought a response from the Federal Supervision Service for the Health and Social Development Sectors. By a letter of 17 August 2010 the acting director of the service informed the applicant that “the performance of ... haemodialysis either in a temporary detention facility or in a correctional colony does not have any legal basis”.
47. Another certificate provided by the Government shows that during the entire period of the applicant’s detention he was taken for a walk in the recreation yard of the facility twice: on 16 and 17 May 2010. The Government alleged that the applicant had consistently refused to leave the cell to be taken for a walk.
48. The applicant provided the Court with an expert report issued on 21 May 2010 by two leading forensic medical experts. Having studied his complete medical history, the experts concluded as follows:
“... as a result of his main illness (insular diabetes) [the applicant’s] central nervous system, cardiovascular system, visual organs, kidneys, stomach [and] thyroid body were damaged.
Progress of type-one insular diabetes is, usually, gradual; [however, it becomes] more rapid if stress or other illnesses are present ...
[The applicant’s] body movement is restricted as he suffers from osteochondrosis of the whirl bones and has undergone a complete hip replacement.
[The applicant’s] hepatitis C ... and chronic Wyatt’s syndrome substantially aggravate his main illness.
... the severity of the [applicant’s] main and concomitant illnesses, his non-functioning renal transplant, and his detention in facility no. 5 in the absence of proper clinical, instrumental and laboratory supervision make the risk of development of lethal complications very real.
The fact that [the applicant] suffers from the listed illnesses leads to the conclusion that he is in need of constant supervision and treatment by medical specialists which could only be provided in specific hospitals ...
It is virtually impossible for [the applicant] to receive the required [medical care] in the conditions of detention facility no. 5 ...
Type-one insular diabetes and chronic renal failure in the terminal stage, from which [the applicant] suffers, are included in the List of Illnesses Precluding [a detainee] from Serving a Sentence, as adopted by Decree no. 54 on 6 February 2004 by the Government of the Russian Federation.”
The experts were also under impression that the medical personnel caring for the applicant had “deliberately understated the seriousness of [his] condition and [had] deliberately amended [the] diagnosis previously confirmed by specialised clinical medical facilities”.
49. On 5 July 2010 the applicant was sent to serve his sentence in correctional colony no. 2 in the Astrakhan Region. On arrival at the colony he was immediately admitted to the prison hospital. However, two days later, given the assessment of his state of health by the prison doctors, the applicant was transferred to the resuscitation department of the AleksandroMariinskiy Regional Clinical Hospital where he started receiving daily haemodialysis and extensive insulin and immunosuppressive therapy. Having examined the applicant on 6 August 2010 the medical commission, comprising a number of medical specialists, including those from the colony hospital, issued a report which, in its relevant part, read as follows:
“The general condition of the patient is serious ...
The patient suffers from obesity of the third degree – he weighs over 130 kilograms; it is clearly insufficient to [treat him] with haemodialysis as an out-patient three times a week; on days when haemodialysis is not performed [the applicant] suffers from excessive hydration, hyperpotassemia, and increasing uremic intoxication, which can only be treated with haemodialysis in the conditions of a resuscitation department in a hospital. Given the severity of his main illness, [the applicant’s] excessive body weight (insufficient haemodialysis) haemodialysis often has to be performed urgently outside the schedule ... in the conditions of the resuscitation department. The most appropriate schedule [for the applicant] is daily haemodialysis in the resuscitation unit. The presence of a non-functioning transplant requires regular instrumental control (ultrasound exams ...), examinations by a transplantologist, adjustment of dosage of immunosupressants, [and] a well-timed decision concerning the removal of the transplant. The presence of the haemodialytic catheter in the external jugular vein requires constant care with the aim of preventing infection and thrombosis of the lifesupporting vascular access for haemodialysis. Given the fact that [the applicant] underwent a complete hip replacement with an endoprosthesis he is unable to move without assistance and to care for himself which, in its turn, requires that [the applicant] should be permanently assisted by carers.”
The commission’s conclusion was that the applicant was suffering from illnesses which should preclude his serving the sentence, as declared by the Government’s Decree no. 54 of 6 February 2004.
50. The colony director applied to the Leninskiy District Court of Astrakhan seeking the applicant’s release given his inability to serve the remaining part of his sentence. The director’s request was supported by the medical personnel of the colony hospital, the head of the Astrakhan Town Haemodialysis Centre and the head of the endocrinology department of the Aleksandro-Mariinskiy Regional Clinical Hospital. The doctors argued in open court that the applicant could not stay in the colony and should be permanently admitted to a hospital for life-supporting therapy.
51. On 25 August 2010 the District Court dismissed the request for release, having found that the applicant’s health problems partly resulted from his own careless decisions not to take medicines on certain occasions. The Court also took into account that the applicant was receiving full medical assistance and that he had only served a month and a half of his long-term sentence.
52. Russian law does not contain specific rules or requirements regulating the detention of disabled individuals, including wheelchair-bound detainees.
53. The relevant provisions of the domestic and international law on general health care of detainees are set out in the following judgments: Pakhomov v. Russia, no. 44917/08, 30 September 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, 27 January 2011; and Enea v. Italy [GC], no. 74912/01, § 48, 17 September 2009.
54. The Russian legal regulations of detention matters are explained in the judgment of Isayev v. Russia, no. 20756/04, §§ 67-80, 22 October 2009.
55. The Government’s Decree no. 54 of 6 February 2004 regulates medical examinations of convicts eligible for an early release in view of their state of health. The same Decree contains a list of illnesses that preclude a convict from serving the sentence. In particular, the Decree indicates that individuals suffering from a grave form of diabetes whose 24-hour dose of insulin exceeds 60 units may be relieved from serving sentences in correctional institutions (§ 9).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3