ITEMID: 001-108686
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KOPF AND LIBERDA  v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicants were born in 1953 and 1943 respectively and live in Vienna.
6. In 1997 the biological mother of F., then two years old and born out of wedlock, set her apartment on fire after having consumed drugs. The mother and her child were rescued and, on 19 December 1997, the Vienna Youth Welfare Office (Amt für Jugend und Familie) handed F. over to the applicants as foster parents.
7. The applicants subsequently tried to obtain custody of F. and wanted to adopt him. F.’s mother recovered and was at first allowed access to visit her son. She then tried to obtain custody of F., which led to arguments between her and the applicants. Since these disputes were to the detriment of F., he was given to a “crisis foster family” (Krisenpflegefamilie) on 25 October 2001 for approximately eight weeks. After that period F. was handed over to his biological mother, who obtained provisional custody of him following a decision of the Vienna Juvenile Court (Jugendgerichtshof) on 19 December 2001. This decision entered into force on 18 December 2002, when the Supreme Court rejected an appeal by the applicants (Revisionsrekurs).
8. In the meantime on 20 December 2001 the applicants requested the right to visit F. Thereupon the Juvenile Court asked the Vienna Youth Welfare Office for their observations on the applicants’ request.
9. The Vienna Youth Welfare Office submitted observations on 31 December 2001, stating that because of the long-lasting relationship between F. and the applicants it would be inappropriate not to allow access to the foster parents.
10. On 31 January 2002 the Juvenile Court heard the biological mother, who opposed the granting of visiting rights to the applicants because F. was in the process of getting used to her again.
11. On 8 February 2002 the applicants requested the acceleration of the proceedings (Fristsetzungantrag) under Section 91 of the Austrian Court Act.
12. On 28 March 2002 the Vienna Juvenile Court Assistance Office (Wiener Jugendgerichtshilfe) submitted their observations to the Juvenile Court. In the following months both parties repeatedly filed written observations on that report. The applicants also requested that an expert for child psychology be appointed.
13. On 2 December 2002 the applicants complained about the length of the proceedings and requested the opinion of an expert on child psychology. The biological mother objected to this request.
14. On 4 December 2002 the Juvenile Court asked the applicants whether they were maintaining their request for the appointment of an expert, given that meanwhile a report by the doctor with whom F. had had therapy had been obtained. On 10 December 2002 the applicants informed the court that they insisted on the appointment of an expert and proposed further questions to be put to the expert appointed.
15. On 17 February 2003 the Juvenile Court designated Dr. Sp. as the expert. The biological mother filed objections against Dr. Sp.
16. In July 2003 the court file was transferred to the Vienna Regional Court for Civil Matters, which was dealing with an appeal lodged by the applicants in the custody proceedings concerning F. lodged on 23 May 2003. On an unspecified date the Vienna Regional Court transferred the file to the Wiener Neustadt Regional Court as it considered that that court was competent to decide on the appeal. The Wiener Neustadt Regional Court did so on 19 and 29 January 2004; the file was then forwarded to the Mödling District Court, which had meanwhile become competent to deal with custody and visiting-rights proceedings.
17. On 16 December 2003 Dr Sp asked the District Court for leave to be discharged from the duty to prepare an expert report. He submitted that a report was not feasible because he had not been given the opportunity to examine F. thoroughly by F.’s mother.
18. The Mödling District Court held a hearing with the parties on 1 April 2004 in order to discuss how to proceed further with the case. The judge informed the applicants and the biological mother that he would ask the Youth Office of the Mödling District Administrative Authority (Jugendamt der Bezirkshauptmannschaft) for a final report on the issue of visiting rights.
19. P., who was the officer in charge at the Youth Office of the Mödling District Administrative Authority, submitted the report on 29 July 2004. She recommended refusing visiting rights to the applicants, because the reestablishment of contact with F. after it had been interrupted for more than two years might harm the psychological stability of the child. On 17 August and 16 September 2004 the parties submitted their comments on that report.
20. On 3 August 2004 Dr. Z. of the Niederösterreich Child and Youth Psychological Consulting Office (Kinder- und jugendpsychologischer Beratungsdienst) also suggested that the applicants should not be granted access to F., explaining that F. was aware of the difficulties between his mother and the applicants and therefore, as a protective measure, had said that he did not want to see the applicants. Dr. Z. further stated that not seeing the applicants was not to the detriment of the child. The applicants submitted observations regarding these recommendations.
21. On 9 November 2004 the Mödling District Court rejected the applicants’ request to visit F. and found that failure to provide for personal contact (Unterbleiben des persönlichen Verkehrs) between the applicants and F. did not endanger his well-being.
22. It found that under Article 148 (4) of the Civil Code a court, upon the request of a parent, the child, a youth welfare body or of its own motion had to take the necessary measures if failure to provide for personal contact between the child and the third person would endanger his or her well-being. Third persons, in contrast to parents or grandparents, had no legal right to be granted contact rights and consequently no legal standing in related court proceedings. They could merely suggest to the court (anregen) that it examine the matter of its own motion, and a court could only grant contact rights if failure to do so would endanger the child’s well-being.
23. Taking the applicants’ request as such a suggestion, visiting rights could not be granted. From all the material in the possession of the District Court it was evident that F. was vehemently opposed to meeting the applicants, while at the same time he had developed a close and positive relationship with his mother. The District Court acknowledged that the applicants had a genuine concern for F.’s well-being; however, in the present situation the interests of the applicants did not coincide with the child’s best interests. Given that F. had not been in contact with his foster parents for more than three years, the District Court would follow the conclusions in the reports of P., from the Youth Office of the Mödling District Administrative Authority, and Dr. Z., from the Niederösterreich Child and Youth Psychological Consulting Office. It was quite possible that immediately after F. had been placed with the “crisis foster family” in October 2001 the granting of visiting rights to the applicants might have been useful. However, this was no longer the case and it now served the best interests of the child, who was living with his biological mother, not to put him back in a situation of divided loyalties (Loyalitätskonflikt) between her and his “former family”, the applicants.
24. On 6 December 2004 the applicants appealed against the District Court’s decision. They argued that the refusal of visiting rights breached their rights under Article 8 of the Convention.
25. The Regional Court dismissed the applicants’ appeal on 17 February 2005. It found that foster parents could file requests in proceedings concerning the foster child and also had the right to appeal against decisions. The status of a foster parent was, however, a matter which depended rather on whether the person actually cared for the child and whether a lasting emotional link similar to the one between parents and children had developed. Even though the applicants had lived with F. for approximately forty-six months in the same household with the intent to develop such emotional ties, it was actually more than forty months since they had had care of him and they could now no longer be considered his foster parents. Nevertheless, their appeal had to be considered on its merits, and, for the reasons given by the District Court, granting visiting rights to them was not in the best interests of F. The appeal was therefore unfounded.
26. On 25 May 2005 the Supreme Court dismissed an extraordinary appeal by the applicant (außerordentlicher Revisionsrekurs). That decision was served on the applicants’ counsel on 7 July 2005.
27. Article 148 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) reads as follows:
“(1) If one parent does not live in a common household with a minor child, then the child and this parent have the right to be in personal contact with each other. The exercise of this right shall be regulated by mutual consent between the child and the parents. Whenever such an agreement cannot be reached, the court shall regulate the exercise of this right in a manner appropriate for the welfare of the child, upon an application by the child or a parent, giving due consideration to the needs and wishes of the child.
(2) If necessary, the court shall restrict or not permit the exercise of the right to personal contact, especially if the authorised parent does not comply with his/her obligation under Section 145b.
(3) Paragraphs (1) and (2) shall apply by analogy to the relationship between grandchildren and their grandparents. However, the exercise of the right of grandparents shall also be restricted or not permitted to such an extent that this would otherwise disturb the family life of the parents (a parent) or their relationship to the child.
(4) Where the absence of personal contact between the minor child and a third party that is ready to engage in such contact may jeopardise the child’s welfare, the court shall issue the disposition necessary to regulate the personal contact upon an application by the child, a parent, the youth welfare agency, or of its own motion.”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-58841
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF KHAN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;No violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. On 17 September 1992 the applicant arrived at Manchester Airport on a flight from Pakistan. On the same flight was his cousin, N. Both men were stopped and searched by customs officials. N. was found to be in possession of heroin with a street value of almost 100,000 pounds sterling. He was interviewed and then arrested and charged. No drugs were found on the applicant. He too was interviewed, but made no admissions. He was released without charge. On 26 January 1993 the applicant visited a friend, B., in Sheffield. B. was under investigation for dealing in heroin. On 12 January 1993 the installation of a listening device on B.'s premises had been authorised by the Chief Constable of South Yorkshire on the grounds that the conventional methods of surveillance were unlikely to provide proof that he was dealing in drugs. It was not expected or foreseen that the applicant would visit the premises. Neither B. nor the applicant was aware of the aural surveillance equipment which had been installed by the police.
10. By means of that device the police obtained a tape recording of a conversation, in the course of which the applicant admitted that he had been a party to the importation of drugs by N. on 17 September 1992. The applicant was arrested on 11 February 1993. Again he made no admissions when interviewed, but subsequently he and N. were jointly charged with offences under the Customs and Excise Management Act 1979 and the Misuse of Drugs Act 1991 and committed for trial.
11. The trial took place in December 1993. The applicant pleaded “not guilty”. The applicant admitted that he had been present at the Sheffield address and that his voice was one of those recorded on the tape. It was admitted on behalf of the Crown that the attachment of the listening device had involved a civil trespass and had occasioned some damage to the property. Thereupon, the trial judge conducted a hearing on the voir dire (submissions on a point of law in the absence of the jury) as to the admissibility in evidence of the conversation recorded on the tape. The Crown accepted that without it there was no case against the applicant.
12. The trial judge ruled that the evidence was admissible. Following an amendment to the indictment, the applicant was re-arraigned and pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. On 14 March 1994 the applicant was sentenced to three years' imprisonment.
13. The applicant appealed to the Court of Appeal on the ground that the evidence ought to have been held to be inadmissible. On 27 May 1994 the Court of Appeal dismissed the applicant's appeal against conviction but also certified, as a point of law of general public importance, the question whether evidence of tape-recorded conversations, obtained by a listening device attached by the police to a private house without the knowledge of the owners or occupiers, was admissible in a criminal trial against the defendant.
14. On 4 October 1994 the Appeal Committee of the House of Lords granted the applicant leave to appeal from the decision of the Court of Appeal dismissing his appeal against conviction. On 2 July 1996 the House of Lords dismissed the applicant's appeal. The House of Lords noted that the question before it gave rise to two separate issues, the first being whether evidence of the taped conversations was admissible at all and the second whether, if admissible, it should nonetheless have been excluded by the trial judge in the exercise of his discretion at common law or under the powers conferred by section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). As to the former issue, the House of Lords held that there was no right to privacy in English law and that, even if there were such a right, the common-law rule that relevant evidence which was obtained improperly or even unlawfully remained admissible applied to evidence obtained by the use of surveillance devices which invaded a person's privacy. As to the latter issue, it was held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of PACE. The judge's discretion had to be exercised according to whether the admission of the evidence would render the trial unfair, and the use at a criminal trial of material obtained in breach of the right to privacy enshrined in Article 8 did not mean that the trial would be unfair. On the facts, the trial judge had been entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constituted a breach of Article 8, were not such as to require the exclusion of the evidence. Lord Nolan, giving the opinion of the majority of the House, added:
“The sole cause of this case coming to your Lordship's House is the lack of a statutory system regulating the use of surveillance devices by the police. The absence of such a system seems astonishing, the more so in view of the statutory framework which has governed the use of such devices by the Security Service since 1989, and the interception of communications by the police as well as by other agencies since 1985. I would refrain from other comment because counsel for the respondent was able to inform us, on instructions, that the government proposes to introduce legislation covering the matter in the next session of Parliament.”
15. The applicant was discharged from prison on 11 August 1994. His release was on licence until 12 May 1995.
16. Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application.
17. In each case, the authorising officer should satisfy himself that the following criteria are met: (a) the investigation concerns serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; (c) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism; (d) the use of equipment must be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence.
18. The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings.
19. The Police Complaints Authority was created by section 89 of PACE. It is an independent body empowered to receive complaints as to the conduct of police officers. It has powers to refer charges of criminal offences to the Director of Public Prosecutions and itself to bring disciplinary charges.
20. Section 78(1) of PACE provides as follows:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
21. The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1999.
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97455
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DERMANOVIC v. SERBIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3;Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1966 and lives in Novi Sad.
6. On 24 March 2003 the competent authorities opened a criminal investigation against the applicant on suspicion of abuse of power (“zloupotreba službenog položaja”) and forging of official documents (“falsifikovanje službenih isprava”). On the same day, the applicant was examined by the investigating judge, at which time he submitted a temporary address.
7. On 5 May 2003 the police searched the flat owned by the applicant situated at the address of his permanent residence (prebivalište). The applicant's mother, who was present at the search, stated that the applicant had not lived in that flat for over two years. According to the official police report, the police then contacted the applicant by telephone and he informed them that he was looking for a new flat.
8. Subsequently, following a request by the Novi Sad District Public Prosecutor's Office (Okružno javno tužilaštvo Novi Sad), on 2 June 2003 the Novi Sad District Court (Okružni sud u Novom Sadu) ordered that the applicant be detained on remand under section 142(2)(1) of the Criminal Procedure Code (risk of flight) and that an arrest warrant be issued against him. The applicant appealed against that decision. On 4 June 2003 his lawyer submitted the applicant's new address to the Novi Sad District Court, alleging that he had already done so on 8 May 2003. However, on 23 June 2003 the Supreme Court dismissed the appeal against the detention order.
9. On 17 October 2003 the Public Prosecutor's Office indicted the applicant and shortly thereafter, on 11 December 2003, the District Court quashed the detention order against the applicant and set bail at EUR 40,000. The applicant appeared at the court hearing in person. However, the Supreme Court quashed the bail decision and remitted the case. Thereafter, the District Court again ordered that the applicant be remanded in custody because his behaviour thus far had indicated a high risk of flight; the Supreme Court upheld that decision.
10. Meanwhile, on 6 February 2004 the applicant was brought before the District Court (investigating) judge (“istražni sudija”), and was remanded in custody. The applicant claimed that he had gone to the police station of his own accord, but the Government disagreed. There appears to have been no official police report on the applicant's arrest. The only document relating to the event of that date – a note made by the investigating judge of the Novi Sad District Court – states as follows:
“It is established that the [police] officers... at 10.30 a.m. brought [the applicant] before the... investigating judge of this court... The accused states that at 9 a.m. this morning he voluntarily reported to the Novi Sad police department, because he heard that they were looking for him...”
11. The applicant requested to be released on bail and offered EUR 50,000. His request was dismissed as insufficient, since “the amount [he had] obtained by unlawful actions was several times higher than the amount offered” and thus provided no guarantee that he would not abscond. His detention was thereafter regularly extended because of such a risk.
12. On 9 November 2004 the Novi Sad District Court sentenced the applicant to four and a half years' imprisonment. On 15 June 2005 the Supreme Court quashed that judgment and remitted the case, extending at the same time the applicant's pre-trial detention to prevent his absconding.
13. The applicant filed several applications for release on bail, but his requests were dismissed.
14. In the resumed proceedings, on 18 May 2006 the District Court again found the applicant guilty and sentenced him to three years' imprisonment. However, that judgment was .quashed by the Supreme Court on 6 December 2006 and the applicant's detention was extended.
15. In early 2007 the applicant requested release from detention on account of inadequate medical care, but his request was dismissed in April 2007.
16. In the remitted proceedings, on 14 May 2007 the applicant's counsel objected to an expert opinion submitted to the court. She explained the applicant's health condition in detail, complained about the inadequacy of his medical treatment in detention and stressed that his health had deteriorated to a large extent owing to the duration of his detention.
17. In a fresh judgment in the applicant's case delivered on 7 June 2007, the court sentenced the applicant to four years' imprisonment, but decided to release him. However, the applicant was ordered not to leave his habitual place of residence and to report to the District Court each month, failing which he might be returned to custody.
18. The applicant was examined for the first time on 9 February 2004, shortly after being taken into custody. The medical report concluded that he had been in good health.
19. During 2004 he was diagnosed with psychiatric problems and was hospitalised on several occasions. In 2005 he suffered from severe back pain and was hospitalised as a result of a hunger strike. In 2006 he was diagnosed with benign breast augmentation. In addition to the public medical care provided, since January 2006 the domestic court had allowed the applicant to have regular consultations with his private doctor.
20. At the end of 2006 the applicant was diagnosed with Hepatitis C. The testing was organised within the framework of voluntary confidential counselling and testing for HIV and Hepatitis (“Dobrovoljno povjerljivo savjetovalište i testiranje”), which at the material time appears to have been available in prison.
21. The applicant claimed that he had been diagnosed already in November 2006, whereas the Government submitted that his diagnosis had been made on 6 December 2006. In his examination of 1 December 2006 the applicant's private doctor made no mention of a Hepatitis C infection.
22. On 25 January 2007 the applicant went on a hunger strike.
23. On 8 February 2007 the applicant was examined by his private doctor, who recommended that he be examined by an infectious diseases specialist. That consultation took place on 13 February 2007, when the applicant underwent further blood tests.
24. As a result of his hunger strike, on 1 March 2007 the applicant was transferred to the Belgrade Prison Hospital because of a rise in his liver enzymes. However, he refused to be examined by the hospital staff, claiming that he had contracted Hepatitis during his last stay there. On 19 March 2007 the applicant's lawyer requested the court that he be returned to the Novi Sad District Prison, and on 28 March 2007 the authorities acted accordingly. On his release from the Belgrade Prison Hospital, the doctors concluded that there were no traces of starvation and that the applicant suffered from drug abuse.
25. On his return, he was again examined by the infectious diseases specialist, who on the basis of further blood tests concluded that his liver enzymes had improved and that he should undergo a liver biopsy, which was performed on 23 April 2007. The biopsy established that the applicant suffered from chronic Hepatitis C with minimal activity and minimal fibrosis. In May 2007 samples were sent for additional tests to determine his genotype in order to start anti-viral treatment.
26. The applicant was released from detention on 7 June 2007, before the genotyping tests were concluded and before he had started receiving treatment for his condition.
27. Pursuant to a medical report dated January 2008, after the applicant had undergone the appropriate anti-viral treatment, his infection was in remission.
28. The relevant provisions of the Code of Criminal Procedure (Zakonik o krivičnom postupku; published in OG FRY nos. 70/01, 68/02, 58/04, 115/05 and 49/07) in force at the material time read as follows:
“If there are circumstances indicating that the defendant might abscond, hide, go to an unknown place or abroad, the court may, by a reasoned decision, prohibit him from leaving his place of residence. ...
The parties may appeal against a ruling ordering, extending or setting aside [the said] measures ... and the Public Prosecutor may also appeal against a ruling rejecting his request for their application. The Judicial Panel ... shall decide on the appeal ... [within a period of three days] ... The appeal does not stay the execution of the ruling. ...”
“A defendant who is to be or has already been detained based only on circumstances indicating that he will abscond ... [or if duly summoned, that he is clearly evading appearance at the main hearing] ... , may remain at large or may be released providing that he personally, or another person on his behalf, gives bail guaranteeing that he will not abscond until the conclusion of the criminal proceedings, and the defendant himself promises that he will not hide or change his place of residence without permission.”
“A decision concerning bail before and in the course of a [judicial] investigation shall be rendered by the investigating judge. After the indictment is preferred, the decision on bail shall be rendered by the President of the Chamber and [subsequently] at the main hearing by the Chamber itself.”
“For the purposes of the unhindered conduct of the criminal proceedings... detention may be ordered against a person who is under reasonable suspicion of having committed a criminal offence if:
(1) he is in hiding or his identity cannot be established, or if there are other circumstances clearly indicating a risk of flight; ...”
“Detention shall be ordered by a decision of the competent court. ...
A decision on detention shall be served on the person to whom it relates at the time he is deprived of his liberty, but no later than within 24 hours ...
A detained person may file an appeal against the decision on detention with the Judicial Panel within 24 hours from the time of its receipt. The appeal, the decision on detention and other files shall immediately be forwarded to the Judicial Panel. The appeal shall not stay the execution of the [impugned] decision. ...
In the situation referred to ... [above] ... [,] the Judicial Panel shall rule on the appeal within 48 hours.”
“If the defendant is in detention on remand, the second-instance court shall examine the continuation of the reasons for the measure and decide whether or not to extend it. No appeal shall lie against that decision.”
29. The relevant provision of the Enforcement of Criminal Sanctions Act 2005 (Zakon o izvršenju krivičnih sankcija; published in OG RS no. 85/05) reads as follows:
“Prisoners are entitled to free medical care.
Prisoners who cannot receive adequate medical treatment within the institution shall be transferred to the Special Prison Hospital or other health institution, and pregnant women to a maternity ward for childbirth.
Time spent on medical treatment shall be calculated as part of the time of imprisonment.”
“(1) Medical treatment of a prisoner is conducted with his consent.
(2) Force-feeding of a prisoner is not allowed...”
“The enforcement of a detention measure is subject to supervision by the president of the District Court that has jurisdiction for the territory where the main premises of the detention facility are located.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-90390
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ALEKSANYAN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (abuse of the right of petition);No violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 8;Violation of Art. 34
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1971. He is currently detained in Moscow, and held in Town Hospital no. 60.
7. The applicant is a former practicing member of the Moscow Bar. He represented Mr Khodorkovskiy and Mr Lebedev, as one of their lawyers, in criminal proceedings which are now the subject of complaints before the Court (applications nos. 5829/04, 4493/04, 13772/05, 11082/06). He also provided legal services to the oil company Yukos (“the company”) in matters related to that company’s application before this Court (application no. 14902/04). Until 2003 the applicant worked as the head of the legal department of Yukos.
8. In 2003-2004 the General Prosecutor’s Office opened an investigation into the activities of several of the company’s senior executives, including Mr Khodorkovskiy, Mr Lebedev, Mr L. N., Ms S.B., Mr D.G., Mr B. and others. Some of them were arrested in 2003-2004 on suspicion of having committed large-scale fraud and embezzlement of the shares of several Siberian oil refineries, including Tomskneft PLC. In particular, Ms S.B., one of the company’s lawyers, was arrested. According to the Government, in her statement of 8 December 2004, confirmed in March-April 2006, she testified that the applicant, as her manager, had instructed her in relation to the illegal operations with the Tomskneft PLC shares, qualified by the prosecution authorities as embezzlement.
9. At the same time the tax authorities sued the company, seeking to recover unpaid corporate taxes. In 2004-2006 the courts delivered several judgments ordering the company to pay considerable tax arrears and considerable penalties. Enforcement proceedings commenced; as a result, a large-scale corporate conflict broke out, opposing the company’s shareholders on one side, and the State, the company’s largest creditor, on the other.
10. On 8 January 2004 the prosecution opened an investigation into the alleged misappropriation of the shares of several Siberian oil companies by several former senior managers of Yukos. Charges were brought against Mr L.N., who, by that time, had fled Russia, and, sometime afterwards, against several other people. The investigation was pursued in 2005 and 2006.
11. According to the applicant, in early 2006 investigators from the General Prosecutor’s Office (“the GPO”) started questioning staff members of Yukos and affiliated companies. The questioning sessions were accompanied by threats of criminal prosecution if the staff members cooperated with the senior executives appointed by the then major shareholders of the company. Those threats were also made to the applicant.
12. On 20 March 2006 the shareholders of Yukos appointed the applicant as executive vicepresident of the company. That appointment was supposed to take effect on 1 April 2006. On 22 March 2006 the applicant was summoned by a GPO investigator and questioned. According to the applicant, during the questioning the investigator warned the applicant to “stay far away” from the company’s business. When he replied that he had no intention of leaving his post at the company, the investigator responded: “This is the first time I have seen a person volunteer to go to prison”.
13. In the meantime bankruptcy proceedings against the company commenced. On 28 March 2006 the Commercial Court of Moscow imposed a supervision order on the company and appointed an interim receiver. Several days later the applicant, as a vice-president of the company, initiated a reorganisation of its management structure. It appears that the reorganisation was regarded by the receiver and the State authorities as an attempt to hinder the bankruptcy proceedings.
14. By a judgment of the Commercial Court of Moscow dated 4 August 2006 Yukos was declared bankrupt, and the court replaced the company’s previous management with a bankruptcy trustee. The trustee was appointed with the consent of the State-owned “Rosneft” company – one of the major creditors of Yukos at that time. The judgment was upheld on appeal by decision of the 9th Commercial Court of Appeal of 26 September 2006 and became final. On 12 November 2007 the bankruptcy proceedings were terminated and the company ceased to exist.
15. On 29 March 2006 the Deputy Prosecutor General requested the Simonovskiy District Court of Moscow to authorise criminal prosecution of the applicant in connection with his alleged participation in the embezzlement of the property and shares of several oil companies and refineries in 1998-1999 (Tomskneft, Achinsk refinery, Eastern Oil Company, etc). The GPO claimed that in 1998-1999, when the applicant had been the head of the legal department of Yukos, he had advised the company’s executives and thus participated in their criminal activities. The shares in these companies had subsequently been “legalised” through a chain of financial operations. In their request the GPO referred to the materials from the criminal case, without, however, identifying them.
16. On 3 and 5 April 2006 the Simonovskiy District Court in an open hearing, examined the request by the GPO. The applicant was present at both hearings. On 5 April 2006 the case was adjourned. According to the applicant, the court informed the parties that on the next day it would deliver its decision on the prosecution’s request.
17. On 4 and 5 April 2006 the Simonovskiy District Court, at the GPO’s request, authorised searches in the applicant’s home and country house. In its decision the court summarised the charges against the applicant as forwarded by the prosecution, noted that the applicant was a lawyer and a member of the Moscow Bar, and indicated his de facto and de jure addresses. The court identified the items or information sought as “documents in paper or electronic format, correspondence, drafts and handwritten notes, other documents and objects important for the investigation”. The court gave no reasons for its decision.
18. On 5 April 2006 the applicant’s premises were searched by the GPO investigators and certain documents were seized. In particular, the GPO searched a flat situated at 7, Bakinskikh Komissarov street, Moscow, and a house situated at 5, Gorki-2 village, in the Moscow Region.
19. On 6 April 2006 the court declared that the applicant’s involvement with the company’s activities in 1998-1999 contained “elements of a criminal offence”. As follows from the court’s decision, it reached this decision “after having heard the participants of the proceedings, and having examined the material [материал] submitted by the GPO”. Consequently, the court authorised criminal prosecution of the applicant. Unlike his lawyer, the applicant was not present at that hearing.
20. On the day the applicant was at the flat of an acquaintance, Mr S., a member of Parliament. At about 2 p.m. the police arrived at the flat and rang the doorbell. According to the applicant, he heard the doorbell ringing but did not open the door, since the owner of the flat was absent and he did not have the keys. Having received no reply, the police forced the door, broke into the apartment and arrested the applicant. A few hours later the GPO lodged a request with the Basmanniy District Court of Moscow seeking the applicant’s further detention pending investigation. The prosecution submitted a police report on the applicant’s arrest, attesting that the applicant was arrested not at his permanent place of residence but in another flat, that he had failed to appear before the Simonovskiy District Court and that, according to some unidentified “operative information”, he had intended to leave Russia in order to evade arrest.
21. On 7 April 2006 the Basmanniy District Court examined the detention request. The applicant and his lawyer were present at the detention hearing. They pleaded that the applicant should not be remanded in custody. The applicant’s arguments may be summarised as follows. The prosecution case against the applicant was very weak and was based on inadmissible evidence. The Simonovskiy District Court had not done its job adequately and had not provided reasons for its conclusions. The applicant had always cooperated with the GPO in the course of the investigation; the investigation had already lasted over two years and the applicant had always gone to the GPO offices when investigators needed to question him. The applicant had not made any attempt to flee from justice or otherwise obstruct the course of the investigation. The applicant was the single parent of a minor child and the only source of support for his elderly parents. Finally, the applicant maintained that his poor health was incompatible with detention.
22. The prosecution maintained their detention request. They produced to the court a number of procedural documents issued by the prosecution authorities in the course of the investigation, witness statements, copies of electronic documents, financial documents concerning the business activities of several oil companies, etc.
23. Having examined the parties’ arguments, the court held that the applicant should be remanded in custody. The court held that the request for the applicant’s detention had been lodged by a duly authorised prosecution official and that all the necessary formalities had been complied with. The court also held that if the applicant was dissatisfied with the decision of the Simonovskiy District Court, it was still possible to appeal against it. The court further held as follows:
“The court takes into account that [the applicant] is charged with having committed criminal offences which are qualified as serious or especially serious and which are punishable by imprisonment of more than two years. The circumstances in which those crimes were committed, information about the applicant’s personality and his occupation [all] give the court enough reasons to conclude that, if he remained at liberty, [the applicant] might abscond from the investigative or judicial bodies, adversely influence the victims, witnesses and other participants in the criminal proceedings, take measures to destroy evidence and objects and documents which are important for the investigation but which have not yet been found by the investigative bodies, might contact his accomplices who are hiding from justice and [thus] obstruct the course of the proceedings, which is confirmed by the results of the search (case file no. 2, pages 127-130) and by the report of the [Ministry of Internal Affairs] to [the GPO] as to information concerning [the applicant’s] plans to leave Russia. The court also takes into account the applicant’s age, family situation and medical condition and the fact that he has a minor child and lives permanently in Moscow.”
24. As to the applicant’s allegation that the case against him was very weak and based on inadmissible evidence, the court held as follows:
“... As to the argument of [the applicant and his lawyer] that materials produced [by the prosecution to the court] contain no evidence of [the applicant’s] involvement in the crimes imputed to him, the court cannot take [this argument] into account, since the questions of guilt or innocence, [and] proof ... of [the applicant’s] participation in the crimes are to be decided at the trial on the merits, and [therefore] should not be examined at the present hearing”.
25. On 10 April 2006 the GPO searched in a house situated at 7, Matveykovo village, in the Moscow Region.
26. The applicant lodged several appeals: against the decisions of 4 and 5 April (authorising searches), 6 April (authorising criminal prosecution of the applicant) and 7 April 2006 (ordering his detention).
27. On 17 May 2006 the Moscow City Court dismissed the first appeal and confirmed the decisions of 4 and 5 April 2006. The City Court held that the decisions of the Simonovskiy District Court were sufficiently reasoned and lawful.
28. On 22 May 2006 the Moscow City Court dismissed the defence’s second appeal and upheld the decision of 6 April 2006. The City Court held, inter alia, that at that stage it was not its task to examine the specific acts with which the applicant was charged or the evidence produced by the parties. Otherwise its work would amount to an examination of the case on its merits. The defence could not therefore rely on alleged violations of domestic or international law.
29. On 31 May 2006 the Moscow City Court dismissed the appeal against the decision of the Basmanniy City Court of 7 April 2006.
30. On an unspecified date, in addition to the previous charges, the applicant was charged with personal income tax evasion allegedly committed in 2000 – 2002.
31. On 2 June 2006 the Basmanniy District Court, at the request of the prosecution, extended the applicant’s detention until 2 September 2006.
32. At the hearing the GPO claimed that they needed to perform a number of additional investigative actions, namely, to obtain expert reports, to obtain replies to the court’s rogatory letters and to obtain decisions on the extradition of Mr L. N. and Mr D. G. to Russia. Further, the GPO had to “question witnesses, seize documents in ... organisations, banks, tax inspectorates and, based on the evidence thus collected, bring new charges against [the applicant] and perform other investigative actions aimed at completing the preliminary investigation”.
33. The parties’ arguments before the court were broadly similar to their previous position. The prosecution emphasised that the applicant’s accomplices had fled from justice. The applicant, in turn, provided the court with more detailed information on his state of health. Further, he claimed that while in detention he had never been questioned in connection with his case.
34. The court concluded that the applicant’s situation had not changed, and that therefore there was no reason to apply a measure of restraint milder than detention. As to the applicant’s state of health, the court noted that despite information about the applicant’s diseases, there was no evidence that his medical condition was incompatible with detention. The court also held that it was not competent to examine evidence against the applicant and the legal qualification given by the prosecution to the facts of the case.
35. The applicant’s lawyers appealed against that decision. They submitted to the court of appeal additional documents concerning the applicant’s state of health. They also complained that the District Court had not examined the possibility of applying a milder measure of restraint. On 19 July 2006 the Moscow City Court dismissed their arguments and upheld the decision of 2 June 2006.
36. On 23 August 2006 the GPO requested an extension of the applicant’s detention on remand. The prosecution referred to a document seized in 2004 in the office of Mr D. G., one of the former legal advisers of Yukos, from which it followed that the Yukos management planned to put pressure on the law-enforcement bodies through political channels. They also referred to information received as a result of the operational and search activities, which showed that the applicant had tried to contact other co-defendants who were hiding abroad.
37. At the hearing the applicant opposed that request, repeating his earlier arguments. Thus, the applicant claimed that the GPO’s allegations that he would abscond or interfere with the course of justice were not based on any facts. Finally, the applicant alleged that he should not be detained because of his poor health.
38. The applicant’s defence also claimed that his initial arrest had been unlawful. The decision of the Simonovskiy District Court of 6 April 2006, authorising criminal prosecution of the applicant, became final only on 22 May 2006. Before that date the GPO had no power to perform any investigative actions in his respect, let alone to arrest him.
39. The court noted that the case under investigation was quite complex and that the applicant’s detention on remand should therefore be extended. The court also repeated the wording of the first two detention orders justifying detention. To the previous reasoning the court added that there was a risk that the applicant might continue his criminal activities. It also referred to the information received by the prosecution as a result of the operational and search activities. As to the lawfulness of the initial detention order, the court noted that, since the decision of 7 April 2006 had been confirmed by the court of appeal, the applicant’s detention was lawful. The court held that the argument of the defence about the lack of evidence of crime should not be examined within the detention proceedings. As a result, the applicant’s detention was extended anew, until 2 December 2006.
40. The defence appealed, claiming, inter alia, that the continued detention of the applicant amounted to inhuman and degrading treatment. On 9 October 2006 the Moscow City Court dismissed the appeal.
41. On 23 November 2006 the court extended the applicant’s detention until 2 March 2007. The court again examined the arguments of the parties, “materials” produced by the prosecution and the applicant’s arguments in favour of his release. In addition to the previously stated reasons the court referred to the risk of collusion with Mr L. N., Mr D.G., Mr B., all of whom had left Russia. The court also referred to the fact that on 6 April 2006 the applicant had not attended the hearing at which the court had read out its decision authorising criminal prosecution against him. The court also referred to the fact that the applicant had not been arrested in his usual place of residence and that he did not open the door when the police officers arrived to arrest him. In addition, the court referred to an electronic document seized in 2004 in the office of Mr D. G., entitled “Summary analysis of the criminal-law aspects of the activities of senior managers and shareholders of the Menatep-Rosprom-Yukos group”. That document, according to the court, described various measures which the shareholders and senior managers of Yukos were preparing to undertake in order to apply pressure, through their connections in the political milieu, on law-enforcement officials, by bribing them, through fictitious claims and complaints, by organising a denigration campaign in the mass-media, etc. The court finally referred to the “operational information” provided by the prosecution authorities which showed the applicant’s intent to establish contact with other suspects who had fled Russia.
42. On 12 December 2006 the investigation was completed. On 20 December 2006 the applicant obtained a copy of the investigation file, which contained 113 volumes.
43. On 21 February 2007 the applicant’s detention on remand was extended at the request of the prosecution. The prosecution noted that due to the applicant’s poor eyesight the examination of the materials of the case was taking a long time. They claimed that the applicant had connections in Russia and abroad, that he could flee from justice, put pressure on witnesses and otherwise obstruct the investigation. The court decided to keep the applicant in remand, referring to the applicant’s character, the danger of absconding, the risk of collusion with other former senior executives of Yukos, and to the factual circumstances referred to in the prosecutor’s request. As to the applicant’s state of health, the court decided, on the basis of the applicant’s medical file, that it was not incompatible with his participation in the criminal proceedings.
44. On 8 August 2007 the applicant’s detention on remand was extended until 2 December 2007, up to 19 months and 27 days in aggregate. The reasons given for that extension repeated the reasons relied on in the previous detention orders. The defence asked the court to summon and question the applicant’s doctors from the Moscow AIDS Centre. However, that motion by the defence was refused by the court, which referred to the certificates from the prison hospital by which the applicant was declared fit to support criminal proceedings and to stand trial.
45. On 15 November 2007 the applicant’s detention was extended until 2 March 2008. The court analysed, inter alia, the applicant’s medical situation. It established that the applicant had refused to take prescribed treatment in the conditions of the remand prison hospital. However, the applicant did not show that the HAART treatment could not be administered within the remand prison hospital.
46. On 19 December 2007 the Basmanniy District Court of Moscow ruled that the defence should finish the reading of the case file by 15 January 2008. In the ruling the court noted that due to the applicant’s poor eyesight he had been unable to read the documents himself, and that the investigator in charge of his case had been reading the case file aloud to the applicant.
47. Upon his arrest on 6 April 2006 the applicant was examined by prison doctors at remand prison 99/1 of Moscow. They established, inter alia, that the applicant had serious sight problems; he had floaters in the right eye (which he himself describes as “effective blindness”) and overall impairment of visual acuity.
48. According to the Government, the applicant was given an opportunity to have a blood test in the laboratory but he refused for religious reasons.
49. The applicant claims that after several months spent in the remand prison his eyesight had deteriorated to the extent that the investigator in charge of his case had to read to him the materials of the case file. The applicant also developed photophobia.
50. On 15 September 2006 the applicant was found for the first time to be HIV-positive. The applicant’s illness was qualified as being of the “third degree” of gravity. Later it was re-qualified to “fourth degree”. The doctors concluded that the applicant could be held in the remand prison without unfavourable development of the HIV infection provided he received regular check-ups in a specialist [Aids] institution, including medical monitoring of his health and timely application of specialised therapy.
51. Over the following months medical examinations showed a further deterioration in his medical condition as a result of the HIV infection. From the applicant’s medical record it follows that he received medicine from his relatives and had consulted with the prison doctor.
52. In November 2006, at the investigator’s request, the applicant’s medical file was examined by a group of specialist doctors. In a report completed on 22 November 2006 the doctors concluded that the applicant was fit to be detained and to participate in the investigative activities. At the same time the doctors noted that the applicant’s condition was worsening, and recommended HAART (Highly Active AntiRetroviral Therapy) treatment and regular monitoring of his health in a specialised medical institution (every 12 weeks, or more often if necessary). The doctors also concluded that the applicant’s right eye was completely blind and that the eyesight of his left eye was seriously impaired (high-level myopia and complex astigmatism). However, the doctors declared themselves incompetent to decide whether the applicant’s illnesses could be treated in the conditions of the remand prison (point 4 of the report).
53. According to the Government, the prison hospital had all the necessary medication. In addition, in 2007–2008 the applicant received eight parcels with medicine from his relatives. As to the HAART medication, it could have been obtained by the applicant’s relatives in a specialised pharmacy in Moscow, on the presentation of a prescription issued by the Moscow AIDS Centre. In support of their submissions, the Government referred to letters signed by Mr Tagiev, the head of the remand prison, and sent to the Court in 2008.
54. The Government produced further written depositions by two former cell-mates of the applicant. They were addressed to the remand prison administration. The first deposition, dated 30 January 2008, was signed by Mr Semin, the second, dated 31 January 2008, was signed by Mr Remidov. Mr Semin was detained with the applicant in April 2007. He testified that the conditions of detention were satisfactory, and that “the applicant had received medical assistance in full, both from the remand prison hospital and his relatives”. Mr Remidov was detained with the applicant from the end of September until November 2007. He repeated the account given by Mr Semin. He added that on several occasions the applicant was taken for examination to external medical institutions.
55. The Government produced a copy of the applicant’s medical file. From that file it follows that the applicant received medicines from his relatives and from the prison pharmacy. The medicines mentioned in the medical file included aspirin, antibacterial and antiviral drugs (“Biceptol” and “Cyclovir”), locally acting anti-inflammatory drugs (“Tantum Verde”), anti-allergic drugs (“Suprastin”), activated charcoal, immunostimulating drugs (“Imudon”), nootropic substances, etc. Most of them were received from the applicant’s relatives.
56. As follows from the medical file, in the first half of 2007 the applicant did not refuse treatment or examination by the prison doctors. On 15 March 2007 the applicant was taken to the Moscow AIDS Centre for examination. The entry of 15 June 2007 attests that the applicant refused to accept an injection before having consulted his lawyer.
57. In July 2007 the applicant developed severe headaches and pharyngalgia. On 2 and 3 July 2007 he asked the investigator for referral to the Moscow AIDS Centre for examination and treatment. He also complained that medical checks had been carried out only sporadically and that he had not received the previously prescribed treatment. In his reply of 3 July 2007 the investigator informed the applicant that medical aid to detainees was within the competence of the prison authorities, and that his request had been transmitted to them.
58. On 10 July 2007 the applicant was placed in the Moscow AIDS Centre for a new medical examination. The applicant was informed of the possible side effects of the HAART treatment; he signed a paper in which he expressly accepted the treatment. That paper informed the applicant, inter alia, that the treatment was not capable of curing his disease completely and that it could have side-effects, of which the applicant had been informed. That written waiver also contained the names of the medicines prescribed to the applicant: the entry of 10 July 2007 in the applicant’s medical file attests that the applicant had agreed to undergo anti-retroviral therapy.
59. According to the Government, after 10 July 2007, when the applicant signed an information notice and accepted HAART treatment in writing, he refused that treatment, insisting that it should be administered in the specialised hospital itself and not in the remand prison hospital. The Government referred to a report signed by the deputy head of the prison hospital, a doctor from that hospital and a paramedic, in which they certified that the applicant had refused HAART treatment.
60. The applicant’s medical file, produced by the Government, contains three entries related to July and August 2007, attesting that the applicant refused to undergo treatment or examination by prison medical staff (the first entry was dated 15 July 2007).
61. The applicant maintained that the medication prescribed within the HAART treatment had not been made available to him, despite his requests. In support he referred to the letter from the investigator, dated 26 July 2007, in which the investigator had mentioned that the applicant had asked him to start the HAART treatment. The applicant maintained that on 8 August 2007 a paramedic from the prison hospital, while conducting his evening rounds, had offered him boxes which apparently contained some medicine. The paramedic did not tell the applicant what was in those boxes. The applicant, who was almost completely blind, refused to take them, because he did not know about any new treatment being prescribed.
62. In September the applicant complained to the investigator that he did not receive medical examination and treatment. On 12 September 2007 the investigator forwarded his letter to the prison authorities, requesting that the applicant be transferred to the Moscow AIDS Centre for medical examinations. In his letter the investigator asked the prison authorities “to secure timely medical examination of the applicant and his treatment, including the HAART treatment recommended by the forensic report”.
63. From September 2007 the applicant suffered from a swinging fever of between 36 and 39o C, lost over 10 per cent of his body weight and was anaemic. In addition, he developed a number of opportunistic diseases. Thus, he contracted shingles and developed stomatitis, with evidence of oral candidiasis and associated dysphagia. There was evidence of marked neurological problems, with encephalopathy, poly-neuropathy, optic atrophy and corneal dystrophy. His eyeballs were sunken and he had chronic blepharitis. Further investigation apparently indicated persistent liver lesions with evidence of chronic cholecystitis, and other diseases.
64. On 18 September 2007 the applicant was taken to the Moscow AIDS Centre for consultation. On 16 October 2007 the applicant underwent yet another medical examination, which revealed a dramatic deterioration in his condition as a result of the HIV infection. On 23 October 2007 he was examined in the Moscow AIDS Centre anew. A report by Dr Galina and Dr Oskina concluded that the applicant was suffering from Aids (3rd (4th) stage “B”). The applicant’s condition was described as “moderately severe (unsatisfactory)”. The report also recommended that the applicant undergo in-patient examination and treatment in the Moscow AIDS Centre.
65. The defence contacted Dr David A. Hawkins, a British expert on Aids and Consultant Physician at the Chelsea and Westminster Hospital, London. Having examined the applicant’s medical record, Dr Hawkins concluded as follows:
“It is my opinion that [the applicant’s] medical condition is such that there is imminent threat to his life should he remain untreated both in respect of the opportunistic infections, and the HIV infection itself. There is also a major imminent risk of irreparable damage to his health should these treatments not be initiated straight away.
Were [the applicant] to be imprisoned in the UK, he would undoubtedly be released on compassionate grounds or at least transferred to a specialist hospital until his condition ha[d] been diagnosed, treated and stabilised. It is of great concern that his numerous serious and indeed life- (and sight-) threatening problems have not been urgently addressed.”
66. On 24 September 2007 the prison authorities informed the applicant’s lawyers that they had obtained the necessary prescriptions from the doctors of the Moscow AIDS Centre, and that the applicant’s relatives could purchase the necessary medicines for him. According to the prison authorities, however, the applicant was able to take these drugs in the remand prison and did not require transfer to an outside hospital for in-patient treatment.
67. On 26 October 2007 the applicant was transferred from remand prison 99/1 to the hospital of remand prison 77/1.
68. Following the results of the medical examination the defence submitted an application for release to the GPO investigator.
69. On 29 October 2007 the investigator decided that, due to the critical state of the applicant’s health, he should be released on bail. However, the applicant was not released; instead, on 31 October 2007 the investigator brought a motion before the Basmanniy District Court, seeking to obtain the authorisation of the applicant’s release on bail. The amount of bail requested by the prosecution was 2,500,000 Russian Roubles. In the application for release the investigator stated, inter alia, that the applicant’s diseases could not be treated in the conditions of the remand prison.
70. On 2 November 2007 the Basmanniy District Court of Moscow examined the investigator’s request. According to the applicant, at the hearing a GPO representative opposed the applicant’s release.
71. The court decided that it was not competent to deal with the matter. The court also noted that, under the Code of Criminal Procedure, it was the investigator in charge of the case who was competent to order a suspect’s release on bail.
72. On 9 November 2007 the investigator took a new decision, this time dismissing the application for release. The investigator noted that it was for the detention centre’s administration to decide whether the applicant should be treated in a civil hospital. The investigator further stated that, according to information received from the detention centre’s medical facility, the applicant had refused the treatment proposed by the doctors working there. The investigator also took into account the decision of the Basmanniy District Court of 2 November 2007, dismissing the application for release. The investigator concluded that he was not competent to decide whether the applicant should be transferred to a specialised medical institution. The defence appealed, but to no avail.
73. On 15 November 2007 the court extended the applicant’s detention on remand. With regard to the applicant’s state of health, it referred to the certificate delivered by the prison hospital, which attested that the applicant had been fit for detention and could participate in the criminal proceedings. It also attested that the applicant had refused to be examined by the doctors of the prison hospital and had refused to take the HAART treatment prescribed to him. The court also referred to the conclusions of the “complex forensic medical examination of the applicant”. It appears that the court was referring to the examination carried out in 2006 (see paragraph 52 above).
74. The entries of October-December 2007 in the applicant’s medical file attest that on several occasions the applicant refused to undergo medical examination in the prison hospital. However, there is no information about the treatment the applicant received, or was offered. As follows from the entry of 28 November 2007, the applicant refused to undergo examination and treatment “in the conditions of the infectious diseases department of the prison hospital”. The entry of 19 December 2007 attests that the applicant insisted on treatment in the Moscow AIDS Centre. The above entries were certified by the signatures of the medical personnel on duty.
75. On 26 November 2007 the applicant’s lawyer requested the Court to apply interim measures under Rule 39 of the Rules of Court. He complained that, although the applicant had been recognised as unfit for detention, the court and then the investigator had refused to examine his application for release and to grant bail.
76. On 27 November 2007 the President of the Section to which the case has been allocated decided to indicate to the Government of Russia, under Rule 39 of the Rules of Court, interim measures which consisted of the following. The Government was invited to secure immediately, by appropriate means, the in-patient treatment of the applicant in a hospital specialised in the treatment of Aids and concomitant diseases. The Government were further requested to submit a copy of the applicant’s medical file by 5 December 2007.
77. According to the applicant, on the same day (that is, on 27 November 2007) the GPO investigator Ms R., in the presence of the applicant’s lawyer, put pressure on him to make a false confession and give false testimony against other persons, in exchange for release for medical treatment.
78. On 4 December 2007 the Government informed the Court that the interim measure had not been yet implemented since “it required additional time”.
79. On 20 December 2007 the applicant underwent yet another examination in the Moscow AIDS Centre, with participation of the doctors from the remand prison hospital. Their report stated that the applicant “continued to refuse anti-retroviral medicine”. One of the recommendations made by the doctors was “to commence HAART treatment on receipt of the results of the blood tests conducted on 20 December 2007”.
80. On 21 December 2007 the Court indicated to the Government an additional interim measure, confirming, at the same time, the validity of the previous one (the transfer of the applicant to a specialised institution). The Government were invited to form a medical commission, to be composed on a bipartisan basis, to diagnose the applicant’s health problems and suggest treatment. The commission was also to be charged with deciding whether the applicant’s medical conditions could be adequately treated in the medical facility of the detention centre. The Government was invited to report on the implementation of this additional measure by 27 December 2007.
81. On 25 December 2007 the applicant’s representative contacted the Russian Government. He submitted a list of doctors who should be included in the medical commission on behalf of the applicant.
82. On 27 December 2007 the Government replied that the applicant could receive adequate medical treatment in the medical facility of the detention centre, and that his examination by a mixed medical commission was against Russian law.
83. The letter of 23 January 2008, signed by Mr Plyusov, the deputy head of the medical service of the penitentiary system, attested that on 21 December 2007 the applicant consulted with a number of doctors, gave saliva samples for TB-analysis, underwent a blood test and an X-ray test, and underwent a biopsy of the lymph nodes.
84. The Government produced several reports by prison doctors in which they attested that the applicant refused to be seen by a doctor and to undergo tests. These include two reports dated 8 and 9 August 2007, in which several prison officials attested that the applicant “refused to take medicine that forms part of the treatment prescribed by the Moscow AIDS Centre”.
85. On 21 January 2008 a group of doctors from the Chelsea and Westminster Hospital examined the applicant’s medical records at the request of his lawyers. The doctors concluded as follows:
“[The applicant] can only be properly managed within an Aids specialist hospital and, whatever the reasons for his incarceration, this should be made available to him on compassionate grounds. He remains desperately ill and at imminent risk of dying”.
86. On 22 January 2008 the Supreme Court of the Russian Federation dismissed the applicant’s appeal against the most recent extension of his detention. During the hearing the applicant remained in the prison hospital; however, he was able to communicate with the judges through a video-conference system. At that hearing he stated that on 28 December 2006 he had been taken to the building of the Prosecutor General’s Office, where he had met Mr Karimov, the investigator in charge of the cases of Mr Khodorkovskiy and Mr Lebedev. Mr Karimov had offered him a deal: if he testified against Mr Khodorkovskiy and Mr Lebedev he would be released. Mr Karimov had allegedly told the applicant that the General Prosecutor’s Office had been aware of his health situation, and that it would be advisable for the applicant to receive appropriate treatment, perhaps in a foreign hospital. In April 2007 Mr Khatypov, investigator in the applicant’s case, told his defense attorney, Ms Lvova, that if the applicant admitted his guilt and agreed to cooperate, then he would be released. The applicant maintained that he received the same offer on 27 November 2008 from Ms Rusanova, another investigator working with Mr Karimov.
87. On 30 January 2008 preliminary hearings in the applicant’s trial commenced.
88. On 31 January 2008 doctors diagnosed the applicant with Aids-related lymphoma.
89. On 4 February 2008 the applicant underwent yet another medical examination by a team of doctors consisting of Ms Ivanova, the head of the Moscow City Haematological Centre, and two doctors - Mr Markaryan and Ms Lazareva. They concluded that, in addition to Aids, the applicant suffered from T-cell lymphoma. They recommended that the applicant should undergo in-patient treatment (polychemotherapy combined with anti-retroviral therapy) in a haematologic hospital.
90. On the same day the applicant was examined by Dr Yurin and Dr Frolova. They recommended that he undergo anti-TB treatment and that the applicant’s tolerance to certain components of the anti-retroviral therapy be examined, in order to develop a plan of anti-retroviral treatment. Their report did not contain any recommendations on the applicant’s further detention.
91. On 6 February 2008 the Simonovskiy District Court suspended the trial in the applicant’s case. The court concluded that the applicant’s poor health prevented him from participating in the proceedings.
92. The court also examined an application for release lodged by the defence. The prosecution maintained that, if released, the applicant might interfere with the normal course of the proceedings. The court accepted this argument by the prosecution. It ruled as follows:
“At present [the applicant] is charged with serious crimes; if released, he may thwart the establishment of truth in the case [and] influence other participants in the proceedings. Therefore, the grounds on which the measure of restraint was applied [have] not changed.”
93. The court further held that the applicant had been receiving adequate medical treatment in the remand prison hospital. The court referred to the fact that the applicant had been examined by several leading specialist doctors, including Ms Ivanova, the head of the haematological clinic, Mr Yurin, deputy director of the Federal Centre for Aids prevention, and Ms Frolova, director of the Federal Anti-Tuberculosis Centre. The court concluded that:
“The applicant will receive full treatment in accordance with the recommendations of the doctors, which does not require changing the measure of restraint”
94. On 8 February 2008 the applicant was placed in Town Hospital no. 60, in pursuance of the recommendations of 4 February 2008. In the hospital the applicant was guarded round-the-clock by policemen; the windows of his room were covered with an iron grill.
95. On 9 February 2008 the applicant was again examined by the specialists of the Moscow AIDS Centre. He received medicine to commence the HAART treatment. However, the day after taking that medication his condition deteriorated, he was placed on an intravenous drip and the therapy was discontinued. On 11 February 2008 the doctors amended their recommendations and a new HAART regimen was prescribed and administered.
96. On 12 February 2008 the applicant was further diagnosed with an ulcer in his oesophagus.
97. According to the applicant, while in hospital, he was almost always handcuffed to his bed, and was released only to use the toilet or take a shower. The applicant was able to meet with his lawyer for the first time on 16 February 2008. According to Mr Tagiev’s letter of 26 May 2008, handcuffs were applied to the applicant between 8 and 18 February 2008, on the ground that the applicant was likely to abscond. The handcuffs were removed every two hours in order to restore normal blood circulation.
98. On 2 March 2008 the term of the applicant’s detention expired. He lodged an application for release.
99. The applicant produced a report by Dr Vorobyev, Director of the Haematological Centre in Moscow, dated 3 March 2008. Dr Vorobyev, after examining the applicant’s medical file, concluded that the applicant’s lymphoma belonged to the category of cancerous neoplasm of lymphatic tissues, and that the applicant needed to undergo 4 months of polychemotherapy with subsequent adjustment of the regimen. He stressed that chemotherapy should be conducted in a sterile environment.
100. On 22 May 2008 the applicant’s representative informed the Court that the applicant was suffering from severe allergic reactions to the HAART treatment and that his condition was not sufficiently stable to commence the necessary polychemotherapy for his Aids-related lymphoma.
101. At the moment the applicant remains in Town Hospital no. 60, where he is undergoing medical treatment. His detention on remand has been extended until January 2009.
102. Under Article 91 of the Criminal Procedure Code (“the Code” or “CCrP”), the police may arrest a person suspected of having committed an offence punishable by imprisonment if the person is caught in the act or immediately after committing the offence. No judicial authorisation of the arrest is required.
103. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention on remand (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112). Pursuant to Article 94, within forty-eight hours of the time of arrest a suspect must be released if a measure of restraint in the form of custody has not been imposed on him or her, or if a final decision has not been deferred by a court under Article 108 (paragraph 6, subparagraph 3) of the Code. When imposition of custody as a measure of restraint is deemed to be necessary, an application must be lodged to that effect with a district court by a prosecutor or by an investigator or inquiry officer with the consent of a prosecutor.
104. Pursuant to Article 108, taking into custody as a measure of restraint is to be imposed by a court decision on a person accused or suspected of having committed an offence punishable under criminal law by imprisonment for a term exceeding two years, if it is impossible to use a different, milder measure of restraint.
105. If a judge’s ruling to take the suspect into custody as a measure of restraint or to extend the custody period does not arrive within forty-eight hours from the moment of the arrest, the suspect must be released immediately, and the head of the custody facility in which the suspect is held must notify the inquiry agency or the investigator in charge of the proceedings in the criminal case and the prosecutor about such release. If a court finding or ruling exists that denies an investigator’s application to order a measure of restraint in the form of custody, a copy of that ruling must be provided to the suspect when he is released.
106. Under Article 97, a court is empowered to impose a measure of restraint (that is, custody) on a suspect, provided that there are sufficient reasons to believe that the suspect (1) might abscond during the inquiry, pre-trial investigation or trial; (2) might continue to engage in criminal activities; or (3) might threaten a witness or other participants in the criminal proceedings, destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case.
107. Under Article 98, the circumstances to be taken into account when imposing a measure of restraint include, apart from those specified in Article 97 of the Code, the seriousness of the charges brought and the defendant’s personality, age, health, family status, occupation and other circumstances. The judge’s ruling is to be forwarded to the person who has lodged the application, the prosecutor, and the defendant (suspect), for immediate execution. Under Article 108, a second application for a person to be taken into custody in the same criminal case after one such application has been denied by a judge’s ruling may be lodged with a court only if new circumstances emerge which justify the need to take the person into custody. A judge’s ruling on whether to take a person into custody may be appealed against to a higher court within three days from the date on which the ruling was given. A judge of the appellate court (кассационная инстанция) must give a decision on such complaint or representation within three days from the date of its receipt.
108. Pursuant to Article 447 of the Criminal Procedure Code, a special procedure is to be applied in criminal cases with respect to MPs, judges, prosecutors, lawyers (адвокат), etc. Under Article 448, a prosecutor takes the decision to initiate criminal proceedings against a lawyer. Such a decision is subject to approval by a judge. Article 449 prohibits the arrest of MPs, judges, prosecutors and certain other categories of State officials, unless they have been caught at the scene of the crime. However, lawyers are not immune from “arrest”.
109. Under Article 450 § 5, if there was no court decision authorising the criminal prosecution of a lawyer, the court should give its authorisation for investigative measures to be taken in respect of the lawyer.
110. On 14 December 2004 the Constitutional Court of Russia gave a constitutional interpretation of Article 448 (Ruling no. 384-O) of the CCrP insofar as it concerned MPs. It held, inter alia, that before authorising criminal prosecution of an MP the courts are supposed to “check the sufficiency of information produced by the prosecution indicating that a crime has been committed” (point 1 of the operative part of the Ruling).
111. On 16 August 1994 the Ministry of Health adopted Decree no. 170 establishing a country-wide network of Aids control centres, and giving the doctors practical recommendations and information on the diagnosis and treatment of Aids. It also proposed a classification of different stages of Aids: (1) incubation stage; (2) stage of primary manifestations; (3) stage of secondary manifestations; and (4) terminal stage. Each stage is divided into sub-groups (A, B, etc.). Point 2.4 of the Decree stipulates that in the event of deterioration in the state of health of an HIV-positive patient, in particular, where secondary and opportunistic diseases appear, he or she should be placed in a hospital. The Decree stipulates that HIV-positive patients should be treated in specialised hospitals or specialised departments of general hospitals; however, “when no specialised hospitals are available, it is advisable to use infectious diseases hospitals”.
112. On 6 February 2004 the Government of the Russian Federation adopted Decree no. 54 establishing a list of diseases incompatible with serving a prison sentence. That list included malignant tumours (cancer) of lymph- and hematopoietic tissues, myeloproliferative tumours (point 7 of the decree), a manifest decrease in eye acuity as a result of permanent pathological changes (the eye acuity in the better eye should be inferior to 0.05 and not amenable to correction with lenses), diseases caused by HIV at the deuteropathy stage (secondary diseases), in the form of generalised infection, cancer or affliction of the central nervous system.
113. The European Prison Rules stipulate that prisoners should be transferred to specialist hospitals where treatment is not available in prison (Rule 46.1, Recommendation Rec. (2006)2 of the Committee of Ministers to member states). Recommendation no. R (93) 6 of the Committee of Ministers to member States concerning prison and criminological aspects of the control of transmissible diseases, including Aids and related health problems in prison provides, inter alia, that prisoners with terminal HIV disease should be granted early release, in so far as possible, and given proper treatment outside the prison.
114. The UN International Guidelines on HIV/Aids and Human Rights, under the heading “Freedom from Cruel, Inhuman or Degrading Treatment or Punishment” state that denial to prisoners of access to HIV-related health care can constitute cruel, inhuman or degrading treatment, whereas prisoners suffering from Aids (as opposed to “mere” infection with HIV) should be considered for early release and given proper treatment outside prison.
115. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”
VIOLATED_ARTICLES: 34
5
8
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 3