CASE OF VALERIY SAMOYLOV v. RUSSIA
Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1958 and is detained in an unspecified detention facility. 6. The applicant had been a Moscow district prosecutor. He retired in 2006. 7. The national authorities initiated criminal proceedings against several individuals on suspicion of large-scale embezzlement and abuse of power committed by an organised criminal group and involving public officials (see also paragraph 17 below). It appears that in September 2007 the applicant was interviewed as a witness. 8. According to the national authorities (see paragraph 25 below), from October 2007 onwards the applicant did not comply with the investigating authority’s summons for interview and was not living at his registered address. 9. On 14 March 2008 investigator G. issued a decision by which the applicant was given the status of an accused in the above-mentioned criminal proceedings. On the same day the investigator issued a decision prohibiting the applicant from leaving his town of residence and imposing “good behaviour” (подписка о невыезде и надлежащем поведении) (see also paragraph 59 below). The decision read as follows: “[The applicant] is registered as residing at the following address...The investigating authority’s attempts to determine his actual whereabouts were unsuccessful. There are sufficient reasons to consider that he has attempted to flee prosecution. Therefore, I order a preventive measure consisting of the prohibition to leave the town of residence and the requirement of good behaviour.” According to the applicant, neither he nor his lawyer was informed of those decisions at the time. 10. On the same day, the investigator ordered that the applicant’s name be put on the federal wanted list. This order was enforced on 1 April 2008. 11. According to the applicant, during this period of time he did not go into hiding; he was receiving treatment in a hospital and participated in public events. For instance, on 14 March 2008 he attended a public ceremony for the 75th anniversary of the prosecution service and was given an honorary certificate by the Moscow prosecutor. 12. On 17 March 2008 the applicant met investigator G. and was given a summons for an interview on 24 March 2008. On that date the applicant was admitted to town hospital no. 52. On the same day, investigator K. interviewed the applicant’s son. The latter stated that the applicant had been admitted to hospital but could not indicate the address of the hospital. 13. On 8 April 2008 the applicant was transferred to a military hospital. 14. In reply to an enquiry from investigator K., the town hospital informed him on 15 April 2008 that the applicant had been admitted to that hospital from 24 March to 7 April 2008. In reply to another enquiry, the military hospital informed the investigator, apparently on 23 April 2008, that the applicant had been a patient there since 8 April 2008, and that his treatment was expected to be completed by 30 April 2008. 15. In reply to investigator G.’s summons for an interview on 24 April 2008, the applicant’s lawyer stated that the applicant was receiving in-patient treatment in the military hospital, and requested that the decision to order the addition of the applicant’s name to the federal wanted list be revoked. 16. On the same day, 24 April 2008, arresting officers visited the applicant in the hospital and took him to the Investigations Department at about 4 p.m. The arrest record was drafted in the following terms: “The arrest has been effected under Article 91 § 1 (2) and § 2 of the Code of Criminal Procedure because eyewitnesses indicated [the applicant] as the perpetrator; he had previously attempted to evade prosecution and his name had been put on the federal wanted list. If at large, [the applicant] would continue to evade prosecution, pursue his criminal activities, threaten other participants in proceedings, destroy evidence or otherwise obstruct the proceedings.” The applicant made a handwritten comment on the record, indicating that he had not been identified by any eyewitnesses, had been living in his flat in Moscow and had not attempted to evade prosecution. The applicant was provided with a copy of the investigator’s order listing the charges against him. The applicant was then interviewed in the presence of counsel until around midnight in connection with these criminal charges. In addition to detailed comments on the charges against him and relevant other matters, the applicant stated that he had been forced to leave the military hospital, and asked to be re-admitted or provided with medical assistance. 17. The applicant was accused of membership of an organised criminal group (преступное сообщество), involving, inter alia, a district prosecutor, an investigator and several senior officers. According to the investigating authority, this group was structured, had a stable membership with assigned roles in criminal activities, internal discipline and sophisticated planning, involving participants outside the criminal group, including officials in law-enforcement agencies. According to the investigating authority, in early 2007 this group set up bogus criminal proceedings and held searches of the premises of several private companies, seized their property, and misappropriated other property. The applicant was charged under Article 159 § 4 of the Criminal Code (embezzlement as part of an organised group or on a large scale), Article 286 § 3 in conjunction with Article 33 § 4 (incitement to abuse of power causing serious damage), and Article 210 § 2 (membership of a criminal group). 18. The investigator sought judicial authorisation of the applicant’s continued detention, alleging that since January 2007 the applicant had been a member of an organised criminal group which had committed various acts of fraud with the aid of public officials in office. The investigator referred to the applicant’s failure to comply with the preventive measure, his previous employment as a public prosecutor, and the existence of strong corruptive links between him and certain officials in the prosecution service or law-enforcement agencies. The investigator relied in that connection on the results of the tapping of the applicant’s telephone conversations with others. 19. On 25 April 2008 the Zamoskvoretskiy District Court of Moscow held a hearing at which it confirmed the lawfulness of the applicant’s arrest and authorised his continued detention in the following terms: “Bearing in mind the gravity of the charges, the public dangerousness of the offences, the factual circumstances of the case and the addition of [the applicant’s] name to the wanted persons list, the court has reasons to consider that if at large he would evade prosecution, influence witnesses or co-accused or otherwise obstruct the proceedings. The court is satisfied that the investigating authorities first learnt about the admission of [the applicant] to a specific medical facility only on 23 April 2008. The authority had first been informed about his admission to hospital no. 52 after his discharge from this hospital. When ordering measures to determine his whereabouts the authority had no relevant information.” 20. The applicant appealed, contending that the first-instance court had not examined any evidence concerning the allegation that he would evade prosecution. He argued that he had permanent residence in Moscow; the prosecution had been aware of his whereabouts from the tapping of his mobile phone; there was no reason to put his name on the wanted persons list since on 17 March 2008 he had had an interview with the investigator. In any event, until 14 March 2008 the applicant had had witness status in the criminal proceedings and thus had not been under an obligation to inform the investigating authority of his whereabouts. 21. On 15 May 2008 the Moscow City Court upheld the detention order. 22. On 30 May 2008 the applicant was given access to the criminal case file. 23. On 19 June 2008 the District Court held a hearing. The investigator argued that the applicant should be kept in detention for one more month because time was required to allow the defendants and their lawyers to study the case file, to draft a bill of indictment before submitting the criminal case to a trial court. The investigator argued that the grounds for detention persisted, in view of the gravity of the charges and the circumstances of the criminal case. Accepting that the investigating authority needed more time to complete the investigation, the District Court extended the applicant’s detention until 13 August 2008. The court mentioned the gravity of the charges and the addition of the applicant’s name to the wanted persons list. 24. On 11 August 2008 the District Court extended his detention until 13 January 2009 on similar grounds. On 30 December 2008 the term of detention was extended until 24 April 2009. 25. On 11 March 2009 the City Court extended the applicant’s detention until 13 May 2009, with reference to Article 109 § 7 of the Code of Criminal Procedure (CCrP) (see paragraph 57 below). The court held as follows: “[The applicant] has been charged with serious criminal offences...The present case is particularly complex, and has required a large number of investigative measures and assessment of a large amount of documents concerning commercial activities. The file consists of 190 volumes. Fifteen individuals have been charged. The exceptional nature of the case is evident. [The applicant] has been charged with three offences and has been studying the case file since 30 May 2008. There were no unjustified delays in the investigation; [the applicant] was promptly given access to the file. As can be seen from the schedule for studying the file, the defendants study it on a daily basis, except weekends and public holidays. According to the version of the investigating authority, the offences in question were committed by an organised criminal group. The relevant reasons for detention persist. After interviewing [the applicant] as a witness in September 2007, since October 2007 the investigating authority issued summons for interviews, which is confirmed by [the applicant’s] wife, the summons and other reports. [The applicant] did not attend interviews, was not at his registered address, and his whereabouts could not be determined. For these reasons, on 14 March 2008 his name was added to the wanted persons’ list. The above circumstances suffice to conclude that if released he would evade prosecution. Moreover, it is necessary to complete the study of the case file; he may also continue his criminal activities. Alternative preventive measures would not suffice...” 26. On 14 April 2009 the Supreme Court of Russia upheld the detention order of 11 March 2009. 27. On 20 April 2009 the City Court extended the detention of five defendants, including the applicant, until 13 August 2009. Referring to Article 109 of the CCrP, the court mentioned the complexity of the criminal case; that the offences had spanned a long period of time; and that some defendants needed to finish studying the case file. The court refused bail, including for health reasons. 28. The applicant appealed, arguing that his detention could not be extended beyond the twelve-month period indicated in Article 109 § 2 of the CCrP. On 1 June 2009 the Supreme Court rejected his arguments and upheld the detention order of 20 April 2009. 29. On 23 July 2009 the criminal case was submitted for trial in the City Court. The trial started on 5 August 2009. On that date, the court refused the detainees’ applications for release and left the “preventive measure unchanged”, referring to the gravity of the charges and the risk that they would flee justice and put pressure on the victims and witnesses on account of the status of public officials held by some of them, including the applicant. Referring to Article 255 of the CCrP, the court held as follows: “Given the gravity and the number of charges, the present case discloses a public interest and importance which plead, despite the presumption of innocence, in favour of limitation of the [defendants’] liberty; it is not possible to choose a less intrusive preventive measure.” 30. The applicant appealed, contending that the courts had not relied on any averred facts to draw conclusions as to the existence and pertinence of the above-mentioned risks, and that his detention after 24 April 2009 had been unlawful. On 30 September 2009 the Supreme Court upheld the above-mentioned court decision. 31. On 13 January and 19 April 2010 the City Court issued detention orders extending the applicant’s and his co-accused’s detention pending trial. These detention orders read as follows: “Given the number of defendants, the gravity and the number of charges, the present case is exceptional (also as to its volume and complexity)...An extension of the period of the defendants’ detention is necessary in view of the need to complete the trial, to prevent risks of fleeing justice and putting pressure on victims or witnesses, this latter risk being real because of the previous professional activity of certain defendants in law-enforcement agencies. The grounds cited for ordering and extending detention at earlier stages of the proceedings persist; no new circumstances have been mentioned by the defence... Given the gravity and the number of charges, the present case discloses a public interest and importance which plead, despite the presumption of innocence, in favour of limitation of the [defendants’] liberty; it is not possible to choose a less intrusive preventive measure.” 32. It appears that the applicant was convicted on 9 June 2010. 33. In February 2006, March, July and September 2007 and March 2008 the applicant was admitted to various civil hospitals and one military hospital for treatment in relation to a number of conditions of varying degrees of seriousness. From 24 March to 7 April 2008 the applicant was admitted to a town hospital with the following diagnoses: Quincke’s oedema, chronic recurrent nettle rash, intolerance to a number of drugs, focal bulbitis, non-atrophic gastritis, chronic gastroduodenitis and symptoms of hepatitis. 34. On 7 or 8 April 2008 the applicant was admitted to the neurology unit of a military hospital with the following diagnoses: chronic hypertensive encephalopathy and asthenic syndrome, coronary heart disease, exertional angina (pectoris), high blood pressure, kidney maldevelopment, oesophagal hernia, and bronchitis. The applicant’s medical history reads as follows: “The patient complained of headaches, dizziness, heavy fatigue, insomnia, and recurrent chest pain. Anamnesis: For a number of years the patient has the following diagnoses: hypertensive encephalopathy, generalised spinal osteochondrosis...Outpatient and in-patient treatment gave positive results. The recent observations disclose a more severe pain syndrome. Objective examination data and tests: The patient’s global condition is satisfactory...The general blood and urine tests are normal; biochemical blood tests are normal; negative testing for hepatitis B and C; an electrocardiogram discloses an obstruction of intra-ventricular conduction and indications of left ventricular hypertrophy. Treatment: regimen, diet, medication and vitamins...The patient has been discharged from hospital in a satisfactory condition. Recommendations include monitoring by a neuropathologist and a therapist; blood pressure control, diet no. 10, medication by Enalapril (one pill in the morning), Predurtal (one pill twice a day) and Aspikor (one pill regularly); no load-bearing affecting the spine, no exposure to cold; massage and exercise therapy.” 35. In reply to a request from the investigator dealing with the applicant’s criminal case (see paragraph 14 above), the hospital informed him that the applicant’s course of medical treatment was expected to be completed by 30 April 2008. 36. On 24 April 2008 arresting officers visited the applicant in the military hospital and took him to the Investigations Department at about 4 p.m.. The applicant made the following written comment on the arrest record: “I am unfit for any further interview, suffering acute chest pain and high blood pressure”. 37. The applicant was then interviewed in connection with the criminal charges against him. In addition to detailed comments concerning the charges against him and other relevant matters, the applicant stated that he had been forced to leave the military hospital, and asked to be re-admitted to it or given medical assistance in detention. 38. According to the applicant, at some point during the interview he had a hypertensic attack; the investigator called the emergency services, who provided the applicant with medical assistance. The applicant subsequently amended his statement, alleging that the investigator had refused to call the emergency services. 39. After the interview the applicant was placed in a temporary detention centre or a cell in the police station and, allegedly, was not provided with medical assistance or food. The applicant unsuccessfully sought the institution of criminal proceedings against the investigator(s). 40. The applicant lodged complaints of inadequate medical assistance after his arrest. On 13 May 2008 an investigator in the Moscow Investigations Department dismissed them. By a letter of 22 July 2008, the Investigations Department considered that the above complaints did not disclose any criminal offence and that the applicant had received and was receiving the necessary medical assistance. 41. On 28 April 2008 the applicant was transferred to Moscow remand centre no. 77/6. During his admission to the remand centre he was examined by the duty medical assistant, who concluded that his state of health was satisfactory. The applicant informed the medical assistant of his health problems and the medication he was taking. The medical documents submitted by the applicant were admitted to the file. The applicant underwent compulsory tests such as fluographic imaging. According to the Government, on 28 April 2008 he was placed under supervision by the medical staff and received medication for his chronic conditions. 42. On 11 July 2008 the applicant was examined by a doctor in connection with his complaints of double vision and dizziness. His blood pressure was measured and he was prescribed medication with Enalapril (one pill twice a day) and Validol (one pill). According to the applicant, there was no documentary proof that he had received this medication, which, in any event, was “scarce”. 43. The applicant was again examined on 7 October 2008, when he complained of headaches and dizziness. 44. On 25 December 2008 the applicant complained that his state of health was not being attended to by medical specialists in various fields (a cardiologist, a therapist, a neuropathologist, a pulmonologist, an endocrinologist and a gastroenterologist) and that his discharge from hospital in April 2008 had prevented him from receiving a proper diagnosis from an allergist, in order to exclude any undesirable medication. On 15 January 2009 the Moscow Investigations Department examined his complaint and concluded, with reference to an information note from the remand centre, that the applicant’s state of health was satisfactory, that he could request the necessary medical assistance in the remand centre or challenge any refusal before a prosecutor or a court. In addition, by a letter of 16 January 2009 the Moscow Prosecutor’s Office indicated that the applicant had received the requisite treatment for his symptoms, as requested in July and October 2008. 45. In December 2009 the applicant sought an expert report from Ms P., professor and deputy chair of the psychotherapy and narcology department of a Moscow university, concerning his illnesses over a period of time since 2006. Having assessed the available medical data (see paragraphs 33 and 34 above), Ms P. made the following findings in her report of 4 December 2009: “The patient requires monitoring by medical specialists in various fields (a cardiologist, a neuropathologist, a pulmonologist, an endocrinologist, a gastroenterologist and an allergist) and constant intake of medication under the supervision of a medical professional. The recommendations include diet, blood pressure control, glucose blood control, thyroid hormone control, lipidic control, as well as exclusion of static spinal pressure and load lifting, and exclusion of exposure to cold. Non-provision of specialised medical care may cause irreparable health damage and result in the exacerbation of chronic illnesses, disability (a heart attack or a cerebrovascular accident) or death.” 46. On 2 January 2010 the applicant was examined by the senior medical officer of the remand centre in connection with his complaints of headaches, dizziness and pain in the thoracocervical area and was given medication. 47. From 21 February to 16 March 2010 the applicant was admitted to a prison hospital of remand centre no. 77/1 in order for additional examinations by specialist doctors, such as a neuropathologist and a cardiologist, to be carried out. The applicant had an electrocardiogram and was prescribed medication with Korinfar, Papazol and Validol. It appears that in March 2010 the applicant made a written statement that he no longer wished to be treated in the prison hospital. The discharge certificate contained recommendations of monitoring, blood pressure control, and medication with Korinfar and Papaverin. 48. After his discharge from the hospital the applicant was transferred back to remand centre no. 77/6. He was examined by the senior medical officer of the remand centre, who prescribed medication and medical check-ups twice a year. 49. In May 2010 the applicant sought another expert opinion from Professor P. Having assessed the available medical data (see paragraphs 33 and 34 above), on 21 May 2010 Ms P. expanded her earlier report, finding as follows: “Recurring episodes of Quincke’s oedema pose a real risk to life because of the absence of data concerning the syndrome aetiology and the absence of diagnosis and treatment of an allergic condition, which is indispensable. In the absence of treatment, there is a heightened risk of anaphylactic shock.” 50. On 16 August 2010 the applicant was examined by the remand centre doctor in connection with complaints of pain in the ankle joint. The doctor diagnosed dermatitis and athrosis, and prescribed medication. It appears that two days later the applicant refused to take the drugs, referring to raised blood pressure after earlier medication. On 25 August 2010 the applicant was again examined by the doctor, who modified his prescriptions. 51. The Government submitted to the Court nine written statements made by the medical staff of remand centre no. 77/6, to the effect that the applicant had made no complaints concerning medical care or food rations and that he had been provided with adequate medical care. The Government produced detailed descriptions of the food rations provided to detainees in remand centre no. 77/6 in 2008-2010, as well as food and water quality reports issued by the specialised unit of the Prisons Department. 52. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees, without exception. In particular, section III of the Regulation sets out the procedure for initial steps to be taken by the medical personnel of a detention facility on admission of a detainee. On arrival at a temporary detention facility all detainees must have a preliminary medical examination before they are placed in cells shared with other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. No later than three days after the detainee’s arrival at the detention facility he should receive a medical examination, including fluorography. During the in-depth examination a prison doctor should record the detainee’s complaints, study his medical and personal history, record injuries if present, as well as recent tattoos, and schedule additional medical procedures if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 53. Subsequent medical examinations of detainees are performed at least twice a year or at a detainee’s request. If a detainee’s state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee’s medical history. The detainee should be fully informed of the results of the medical examinations. 54. Section III of the Regulation also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment. In each case of refusal, an entry should be made in the detainees’ medical record. A prison doctor should explain to the detainee the consequences of his refusal to undergo the medical procedure. 55. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake. 56. Article 109 § 2 of the Code of Criminal Procedure concerning detention pending investigation provided at the time that after the initial period of detention for two months, another period of detention of up to six months could be ordered by a court. After six months, detention could be ordered up to twelve months in relation to serious and particularly serious offences if the case was particularly complex. It followed from Article 109 § 3 of the Code that detention beyond twelve months and up to eighteen months could be ordered in cases of particularly serious offences. 57. Under Article 109 § 5, after the closure of the preliminary investigation but no later than thirty days before the expiry of the applicable maximum period of detention (see above), the defendant should be given access to the case file. If the defendant obtained access to the file less than thirty days before the expiry of this period of detention, he should be released when this period reached its term. However, if the time afforded for studying the file was insufficient a court could authorise an additional period of detention until such time the defendant finished studying the file (Article 109 § 7). This extension also applied to any other co-defendant who may have already finished studying the file. 58. Under Article 56 of the Code of Criminal Procedure a witness should comply with a summons issued to him by an investigator or a court; for failure to comply a witness may be brought before the authority which issued the summons. 59. A suspect, an accused or defendant may be subject to a preventive measure consisting of a written undertaking by that person not to leave their location of residence without permission from an investigator or a court and/or to respond to any summons issued by them and/or to refrain from any other conduct obstructing the proceedings (Article 102 of the Code).