CASE OF M.S. v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1980 and is serving a prison sentence in the Mordoviya Republic. 6. According to the official version of the events, on 31 May 2007 K., a close friend of the applicant, was arrested by the police when he attempted to sell to P. the amphetamines he had earlier bought from the applicant. K. voluntarily agreed to participate in a fake drug deal organised by the police to help them arrest the applicant in order to stop his drug dealing. He made a written statement to that effect. K. called the applicant in the presence of two attesting witnesses and police officers and asked him to sell him ten ecstasy pills. The applicant met K. at 11 p.m. He gave him the drugs and K. paid him in cash. The police officers then arrested him. K. gave the police the drugs he had received from the applicant. The police took the marked banknotes K. had paid for the drugs from the applicant’s bag. Then they cut the applicant’s nails for forensic analysis. The attesting witnesses were present at the scene and could observe the whole operation. 7. According to the applicant, K. called him and asked for help because he had been arrested. He also asked for money. The applicant agreed to help him. When he met K., the latter put several banknotes in his bag, which was open. Then several plain-clothed police officers arrested him. They handcuffed him, took the banknotes which K. had planted in his bag, cut a section out of his bag and cut his nails, together with some adjacent skin. When the applicant refused to sign the arrest record, one of the police officers punched him. The applicant then signed the document. 8. The applicant was taken to a police station. The head of the police station, S., beat the applicant up in order to make him confess to the crime. The police officers also took some of the applicant’s personal effects and the cash he had on him. The applicant spent the night at the police station. 9. On 1 June 2007 the applicant met with a lawyer, Kh. The latter told him to confess to the crime and to give some cash to the police. They would then let him go and make sure that he received a conditional sentence. The applicant did as he had been told by Kh. 10. The applicant remained in custody during the criminal proceedings against him. 11. On 17 January 2008 the Lefortovskiy District Court of Moscow found the applicant guilty of drug dealing and sentenced him to ten years’ imprisonment. The court based its findings on (1) the testimonies of K., police officers, one of the attesting witnesses and the investigator; (2) materials pertaining to the fake drug deal; and (3) forensic evidence. The court also noted that the applicant’s allegations of ill-treatment had not been subjected to examination in the course of the trial. 12. At the trial the applicant was represented by three lawyers. He pleaded not guilty. He recounted his version of the events, alleging that K. and the police had set him up. 13. On 23 April 2008 the Moscow City Court upheld the applicant’s conviction on appeal. 14. The Government’s submissions as regards the conditions in which the applicant was transported may be summarised as follows: 15. The applicant was always transported alone in a single compartment. He was allowed to use a toilet at the courthouse, if necessary. Once at the courthouse, he had access to drinking water. 16. The Department of the Interior used five types of van for transporting defendants to and from the courthouse. The GAZ-2705 van had an inmate compartment measuring 2.7 by 1.6 by 1.5 m comprising two cells with seating capacity for four persons each and one single cell. The inmate compartment in GAZ-3307 and GAZ-3309 vans measured 3.8 by 2.4 by 1.6 m and had two cells with seating capacity for twelve persons each and one single cell. The inmate compartment of the KAVZ-3976 van measured 3.0 by 2.1 by 1.7 m and had one cell with seating capacity for five persons and six single cells. The inmate compartment in ZIL-4331 vans measured 4.5 by 2.4 by 1.65 m and had two cells with seating capacity for seventeen persons each and two single cells. 17. The vans were ventilated through an opening in the door and by vents in the compartments. They were equipped with heating and lighting. They were cleaned daily and disinfected on a weekly basis. The vans were in good working order at all times. 18. According to the technical specifications for prison vans submitted by the Government, a single compartment in a prison van cannot measure less than 0.5 by 0.6 m. The width of one seating place should be 0.45 m. 19. According to the applicant, he was placed in a prison van compartment measuring 0.7 by 0.7 by 1.6 m. It was lined with metal sheeting and completely isolated from the rest of the van interior. The height of the compartments in the van was insufficient for a man of average stature to enter or stand up without hunching. Inmates were to remain seated at all times while inside the van. On average, each trip lasted three and a half hours. After the court hearings, the applicant and other detainees were first taken to remand prison no. 77/1, where they were sorted depending on destination. Throughout the time the vans were parked at the remand prison, their engines were off and the lighting, heating and ventilation did not function. The compartments inside the vans were very cold in the winter, when the outside temperature was minus 25oC. The inmates were not allowed to use the toilet. All the inmates smoked and the applicant, a nonsmoker, was exposed to second-hand tobacco smoke. 20. On 21 May 2008 the applicant was transported to a correctional colony to serve his prison sentence. 21. According to the Government, the applicant was taken from the remand prison to the railway station in a prison van. The trip lasted four hours (from 3.40 to 7.40 a.m.). It took forty minutes to place the prisoners in railway carriages (from 7.40 to 8.20 a.m.). The train journey lasted fifteen hours and ten minutes (from 8.20 a.m. to 11.30 p.m.). On arrival at the destination station, the inmates were again placed in vans and taken to the respective detention facilities. The trip lasted thirty-five minutes (from 11.30 p.m. to 12.05 a.m.). 22. The train compartment in which the applicant was placed measured 2.05 by 1.51 m. The number of inmates placed in the compartment did not exceed twelve. There were five berths and eight seats in the compartment. The berth was 2.05 m long. The passage between the berths and seats in the compartment was 0.47 m wide. All the inmates had luggage which they were allowed to place under the lower berths. The railway carriage was equipped with heating and ventilation in good working order. 23. As regards the smoking issue, the Government submitted as follows: “Inmates transported by [train] ... are not allowed to smoke. They are warned accordingly by the chief guard. However, the inmates who smoked, during a long trip, became stressed if deprived of smoking. They took advantage of the fact that they were allowed to have cigarettes on them and those could not be confiscated. They tried to smoke, hiding it with skill. Their attempts to smoke, if noticed by the guard, were stopped ... ” 24. Inmates were not allowed to use the toilet within the boundaries of Moscow, that is at the station and during the first forty minutes of the journey. Thereafter, they were allowed to use the toilet every two hours. 25. According to the Government, the applicant submitted three complaints to the prosecutor’s office about the conditions of his transport. In response, the latter asked the authorities in charge of detainees’ transport to conduct an inquiry. No violations were disclosed. 26. The trip lasted eighteen hours. The applicant was placed in a train compartment measuring 2.9 square metres together with twelve other inmates. They were not allowed to use the toilet throughout the journey and had to use plastic bottles in the compartment instead. Almost all of the inmates smoked, and the applicant was exposed to second-hand tobacco smoke. 27. According to a statement signed by the acting head of remand prison SIZO-6 in Moscow and submitted by the Government, during the applicant’s detention in the remand prison from 4 June 2007 to 21 May 2008, he underwent regular medical examinations and received any necessary treatment. 28. Upon arrival at the remand prison, the applicant underwent obligatory blood tests, an X-ray examination and a physical check-up. The blood tests confirmed the presence of HIV (stage 2 – asymptomatic HIV infection). He was prescribed a special diet and placed under regular medical supervision. 29. During the period from May 2008 to date, the applicant has been serving a prison sentence in a number of correctional colonies. The parties did not indicate the exact colony numbers. 30. Following his arrival at correctional colony no. IK-18 in Mordoviya Republic, the applicant underwent a complete physical check-up. The general practitioner recommended consultation with an infectious diseases specialist and a psychiatrist, and prescribed a general blood test and a general sputum smear test. 31. On 29 May and 22 October 2008 the applicant had X-ray examinations. No abnormalities in the lungs were detected. 32. According to the applicant’s medical file, he did not receive any HIV-related treatment or examinations in 2008. 33. On 22 January 2009 the applicant was transferred to a medical correctional colony in order to undergo a comprehensive medical examination. He was examined by an infectious diseases specialist and had a CD4 cell count on 29 January 2009. His CD4 cell count was 759. The diagnosis (stage 2 – asymptomatic HIV infection) was confirmed. He had a biochemical blood test and urine samples were taken. On 30 January 2009 he was discharged from hospital in a satisfactory condition and transferred back to correctional colony no. IK-18. 34. On 26 January, 25 April and 23 October 2009 the applicant had Xray examinations. No abnormalities in the lungs were detected. 35. On 5 February, 23 July and 17 December 2009 the applicant consulted the infectious diseases specialist. On 24 December 2009, following contact with a tuberculosis-infected inmate, the applicant was examined by a tuberculosis specialist who recommended preventive antituberculosis treatment. 36. On 9 December 2009 the applicant had a viral load test. 37. On 16 February 2010 the applicant had another CD4 cell count. On 11 March 2010 he consulted the infectious diseases specialist. Because the applicant had a low CD4 cell count of 182, the doctor re-classified the applicant’s diagnosis as stage 4A and recommended antiretroviral therapy. The applicant consented. 38. On the same day the applicant was examined by the tuberculosis specialist. Subsequently, he underwent preventive medical treatment until 30 March 2010. 39. It appears that the applicant started antiretroviral therapy on 22 March 2010, but developed an allergic reaction to the medication. On 27 March 2010 he consulted the infectious diseases specialist by telephone. The latter recommended discontinuing the treatment. The applicant followed the doctor’s recommendation. 40. On 15 April 2010 the applicant resumed antiretroviral therapy, which was discontinued in view of the allergic reaction. 41. From 11 to 28 May 2010 the applicant underwent a medical examination in hospital. On 18 May (or 7 June) 2010 his CD4 cell count was 583. In view of the test results and referring to the side effects of the antiretroviral therapy, the applicant refused to undergo the therapy. 42. On 15 May 2010 the applicant had an ultrasound scan of his liver, which disclosed diffuse liver changes. 43. On 5 August 2010 the applicant’s CD4 cell count was 572. 44. On 3 October 2010 the applicant had a chest X-ray examination. No abnormalities were detected. 45. From 18 (February) to 4 March and from 18 to 28 April 2011 the applicant underwent an HIV-related examination in hospital. He had an ultrasound scan in connection with polyposis of the gallbladder and diffuse liver changes, and was examined by an infectious diseases specialist. 46. On 18 February 2011 the applicant had a chest X-ray. No abnormalities in the lungs were detected. On 15 March 2011 the applicant consulted a tuberculosis specialist. 47. The applicant was admitted to hospital and received treatment for acute gastritis from 4 to 19 July 2011. 48. On 19 July 2011 the applicant had another chest X-ray, which showed infiltrative shadows on the left lung. On 1 August 2011 the applicant was examined by the tuberculosis specialist, who prescribed a further tomographic examination and sputum smear test. 49. On 20 July 2011 the applicant agreed to undergo antiretroviral treatment. It appears that it was not carried out at the time. 50. From 19 July to 16 August 2011 the applicant underwent another HIV-related examination in hospital. 51. The sputum smear test of 2 August 2011 proved negative. The tomography of 8 August 2011 showed infiltration in the left lung. On 10 August 2011 the tuberculosis specialist ruled out the possibility of tuberculosis infection. 52. The applicant was admitted to hospital and received treatment for acute laryngitis from 17 to 29 August 2011. 53. On 8 September 2011 the applicant consulted the infectious diseases specialist. 54. On 11 September 2011 the applicant’s CD4 cell count was 452. 55. On 23 September 2011 the applicant had a chest X-ray and was diagnosed with tuberculosis (infiltration stage). On the same day he was admitted to hospital, where he underwent treatment for tuberculosis until 2 December 2011. 56. From 31 January to 10 February and from 13 to 24 February 2012 the applicant was admitted to hospital for examinations. It was established that his HIV condition was progressing and it was diagnosed as stage 4. 57. From 18 May to 5 October 2012 the applicant underwent treatment for HIV and tuberculosis in hospital. His CD4 cell count of 13 August 2012 was 303. According to the applicant, he started antiretroviral treatment in September 2012. 58. The applicant received HIV examinations and treatment in hospital from 17 May to 14 June 2013. Upon discharge, his condition was considered satisfactory. 59. According to the applicant, the antiretroviral treatment was interrupted from 12 to 22 June 2013 owing to a lack of necessary medication. The applicant’s medical file contains an entry confirming the lack of necessary medication in stock. On 22 June 2013 the applicant received the medication to resume the antiretroviral treatment. Subsequently, there were no interruptions in the prescribed treatment. 60. On an unspecified date the applicant asked for a transfer to a correctional facility with a less strict regime. 61. On 14 August 2012 the Tengushevskiy District Court of the Mordoviya Republic dismissed the applicant’s request, noting that he should complete the medical treatment prescribed prior to such a transfer, if any. The applicant did not appeal. 62. According to the applicant, the administration of correctional colony no. LPU-5 in the Mordoviya Republic where he was serving his prison sentence refused to dispatch his letters of 15 December 2011, and 24 February, 21 June and 15 July 2012 addressed to the Court, in which he complained of inadequate medical care. He further alleged that the letters of 4 April and 1 August 2012, which he had received from the Court, had been opened and read by the administration of the correctional colony; that his letter addressed to the Court of 14 June 2012 had been opened and dispatched with twenty-five days’ delay; and that his letter addressed to his lawyer, Sh., of 22 June 2012 had not been dispatched.