CASE OF YANKOVSKIY v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Inhuman treatment)
Dmitry Dedov;Luis López Guerra
6. The applicant was born in 1966 and lives in St Petersburg. 7. On 5 April 2010 the applicant was arrested on suspicion of having planned and carried out a murder and of having injured two persons. Four days later he was charged with murder and attempted murder committed within an organised criminal group. The Leninskiy District Court of St Petersburg (“the District Court”) authorised his pre-trial detention for two months. 8. On 3 June 2010 the District Court examined an application by the investigating authorities to extend the applicant’s detention. They relied on the seriousness of the charges, the applicant’s de facto residence not being at his registered address, and the potential risk of intimidation of witnesses or victims, and the risk of obstruction of justice and reoffending. The defence argued that the applicant had no criminal record, that he lived at a known address, had a family with two minor children, and that he suffered from severe diabetes. Having been fully satisfied with the prosecution’s arguments, the District Court extended the detention until 15 August 2010. 9. On 1 July 2010 the St Petersburg City Court (“the City Court”) upheld the decision on appeal. 10. On 12 August 2010 the District Court extended the applicant’s detention until 30 August 2010 citing the seriousness of the charges and the fact that the investigation had not yet been completed. The court found that if released the applicant could influence his co-accused or the victims. With reference to the medical report of 15 July 2010 (see paragraph 41 below) the court noted that the state of health of the accused was compatible with further detention on remand. The decision contained the following phrase: “The investigation has proved [the applicant’s] guilt in that crime” 11. The defence did not appeal against the extension order. 12. On 27 August 2010 the District Court ruled that the applicant should remain in detention until 30 November 2010. The court endorsed the reasoning of the decision of 12 August 2010 and noted that there were still certain investigative actions to be taken. In particular, the authorities had to obtain an expert report, to investigate the applicant’s alleged involvement in five more criminal incidents and to finish examining evidence. 13. On 23 September 2010 the City Court upheld the order on appeal. 14. On 29 November 2010 the District Court examined another application for extension of the applicant’s detention. The same judge as at the hearing of 12 August 2010 presided. Relying on the wording of the court order of that date (see paragraph 10 above) the defence challenged the judge, alleging that he was biased. 15. The District Court dismissed that application, having found that the hearing on 12 August 2010 and the ensuing decision had not concerned the determination of the applicant’s guilt and that there was no evidence of the judge’s partiality. 16. The court extended the applicant’s detention until 28 February 2011, repeating its earlier reasoning. It also concluded that his state of health was “close to satisfactory” and that he could be transferred to a prison hospital should his health worsen. 17. On 30 November 2010 the applicant appealed against both the extension order and the court’s decision regarding the impartiality of the judge. On 15 December 2010 he amended his appeal. 18. The next day the applicant’s lawyer was informed that the appeal hearing had been listed for 23 December 2010. Citing his busy schedule, the lawyer asked the court to adjourn the hearing. The court allowed the request and set the hearing for 20 January 2011. 19. On 20 January 2011 the City Court discovered that a copy of the decision of 29 November 2010 dismissing the application for a change in the composition of the District Court had not been served on the defence, which therefore had had no opportunity to challenge it. The case was remitted to the District Court. 20. A week later the District Court provided the defence with a copy of the impugned decision. 21. On 17 and 24 February 2011 the City Court postponed hearings owing to the applicant’s inability to participate for health reasons. 22. At the hearing on 3 March 2011 the applicant informed the City Court of his wish to change lawyer. The hearing was adjourned again. 23. On 10 March 2011 the City Court upheld the extension order and rejected the applicant’s challenge to the District Court’s judge as unfounded. 24. On 24 February 2011 the District Court extended the applicant’s detention until 5 April 2011, and dismissed a prior application for early release on medical grounds. The court decided that he was receiving adequate medical carecall for his release. 25. On 28 February 2011 the applicant appealed against the extension order with reference to his frail health and the lack of adequate medical care. His appeal reached the court on 10 March 2011. 26. The City Court upheld the extension order on 31 March 2011. 27. On 5 April 2011 the City Court held another detention hearing. The applicant and his lawyer were absent. According to a medical certificate, the applicant was unable to appear owing to ongoing inpatient treatment. A written statement from the investigator said that the applicant’s counsel had been informed of the hearing by telephone on 1 April 2010. Noting the counsel’s absence, the City Court appointed a new lawyer for the defence. The appointed lawyer objected to the extension of the applicant’s detention, referring to the latter’s family situation, permanent residence at a known address and his poor health. 28. The City Court extended the applicant’s detention until 30 May 2011. In addition to the usual reference to the seriousness of the charges, it noted the complexity of the case and the need for the investigating authorities to look into recently obtained evidence suggesting that two more people had been involved in the criminal offences. The court made a detailed list of the investigative steps taken since the most recent detention order, and declared reasonable the length of the investigation. The court also found that the applicant could not be released on medical grounds given the absence of a medical report assessing the compatibility of the applicant’s health with prolonged detention. 29. On 7 April 2011 the defence appealed against the extension. On 21 April and 5 May 2011 a supplement to the appeal was submitted by the applicant’s lawyer, who, referring to the call records on her mobile telephone, argued that the investigator had not informed her of the hearing on 5 April 2011. 30. On 25 May 2011 the Supreme Court held the appeal hearing in the absence of the applicant – who was still receiving inpatient treatment – and his counsel, who asked the court to examine the issue in his absence. The applicant was represented by court-appointed counsel, who supported the arguments put forward in the statement of appeal statement. 31. The Supreme Court upheld the extension order. As it was satisfied with the investigator’s statements about the telephone conversation with the applicant’s lawyer, the court dismissed the argument that the lawyer had not been notified of the hearing on 5 April 2011. 32. On 30 May 2011 the St Petersburg City Court extended the applicant’s detention for three months. The court reiterated that he had been charged with multiple counts of very serious crimes and that the case was very complex. It also cited the applicant’s liability to abscond. As regards his state of health, the court found that in the absence of an expert report release was not warranted. 33. The applicant appealed. On 1 and 8 June 2011 his lawyer submitted supplements to the statement of appeal. 34. The appellate hearing was initially scheduled for 27 June 2011, but then adjourned until 13 July 2011 owing to the applicant’s ongoing medical treatment. On the latter date the Supreme Court upheld the detention order. 35. A number of additional orders followed, extending the detention until 30 November 2011. The extensions were authorised in view of the seriousness of the charges and the necessity for the applicant to study the case file. The applicant was found fit to stay in detention because the requisite treatment was available in prison. Other measures of restraint could not, in the court’s opinion, secure his appearance before the investigating authorities or his law abidance. 36. On 30 November 2011 the District Court refused to extend the applicant’s detention. It found that he was living in St Petersburg at a known address, and that he was employed, and had two minor children. There was no evidence confirming the risk of witness intimidation or reoffending. The court also took into account the applicant’s poor health and his unequivocal intent to cooperate with the prosecution. It appears that on the same day the applicant was released. The City Court upheld that decision on 22 December 2011. 37. There is no information about further developments in the criminal proceedings. 38. Since 1989 the applicant had been suffering from insulin-dependent type-one diabetes. In 2008 he was certified as having a second-degree disability. 39. After the arrest in April 2010 he was taken to the medical unit of remand prison no. IZ-47/1 in St Petersburg. During the first months of detention his treatment was overseen by a prison endocrinologist. 40. On 15 June 2010, at the request of the applicant’s wife, a panel of experts examined his medical condition. They confirmed the diagnosis of type-one-diabetes and frequent instances of ketoacidosis complicated by concomitant diseases. The experts observed that his condition was aggravated by chronic pancreatitis and called for his constant supervision by an endocrinologist and a gastroenterologist of a specialised medical institution licensed to provide those types of medical assistance. The applicant needed a specific diet and insulin injections. A specialist was needed to monitor and correct the applicant’s insulin level. A failure to comply with those recommendations could threaten the applicant’s life. The experts further concluded that the remand prison medical unit was unable to provide adequate medical assistance. 41. At the investigator’s request, on 15 July 2010 a medical panel issued a report concluding that the applicant was fit to stay in the remand prison if he received specific medical care comprising: monitoring of blood sugar levels throughout the day; administration of the requisite medicines and adherence to a specific diet; insulin injections; and “active supervision by an endocrinologist” in order to ensure the correct insulin therapy. The experts noted that “inappropriate” insulin intake could lead to severe complications. 42. In August 2010 the prison endocrinologist was discharged from the medical unit. A resident general practitioner started supervising the applicant’s treatment. According to the applicant, no checks of his insulin level were carried out in the medical unit. Medical documents show that he developed face and feet oedemas. On that account he was sent to Gaaza Prison Hospital in St Petersburg on 13 October 2010. 43. License no. FS 78-01-001560 of 23 April 2009 indicates that Gaaza Prison Hospital was not authorised to provide endocrinological medical services. It did not employ an endocrinologist. 44. On 26 October 2010 the applicant was seen by a civilian endocrinologist. The applicant’s wife paid for the visit. The doctor noted that the patient was suffering from severe diabetes complicated by several concomitant conditions and that he needed “dynamic supervision by an endocrinologist”. 45. Three days later the applicant was transferred from Gaaza Prison Hospital back to the medical unit in the remand prison. 46. On 23 November 2010 and 21 February 2011 a medical board carried out an additional expert examination and repeated its earlier conclusion made in the report on 15 July 2010. 47. According to the applicant, the medical unit staff changed his insulin regimen because the prescribed medication was not available. No consolations with an endocrinologist preceded that decision. As a result his blood sugar level increased significantly. 48. In April and May 2011 he underwent short courses of inpatient treatment in Gaaza Prison Hospital. 49. On 15 June 2011 he was taken by ambulance to Mariyinskaya City Hospital in St Petersburg and was admitted to the emergency department in view of his serious medical condition. He was diagnosed with type-one severe diabetes; diabetic ketoacidosis; non-proliferative diabetic retinopathy; cataracts in both eyes; diabetic angiopathy of both feet; encephalopathy of mixed origin; diabetic sensory polyneuropathy; and diabetic nephropathy. A special medical board stated that those illnesses were not on the list of medical conditions precluding detention; accordingly, the applicant was not eligible for release on medical grounds. The board also called for “dynamic supervision” of the applicant’s treatment by an endocrinologist. 50. Between June and November 2011 the applicant was moved several times between the medical unit in the remand prison and Gaaza Prison Hospital. According to the Government, he was seen once, on 28 June 2011, by a civilian endocrinologist. 51. On 5 April 2012 at the request of the applicant’s lawyer three medical experts prepared a report on the quality of his treatment in detention. It addressed the following questions: “1. What does the necessity of dynamic medical supervision by an endocrinologist’ suggest? 2. Does [the applicant] have an illness ... calling for continuous inpatient treatment in a specialised medical institution? ... 4. How did the absence of ‘dynamic medical supervision by an endocrinologist’ between 5 April 2010 and 30 November 2011 affect [the applicant’s] health? ...” The doctors came to the following conclusions: “1. Dynamic medical supervision by an endocrinologist involves regular medical tests and contact with a doctor ... In a case of stable diabetes with no changes in the insulin level, a medical examination by an endocrinologist must be performed once a month ... [However,] if important changes are being introduced into a patient’s insulin regimen, he or she must have a daily consultation by an endocrinologist ... until the target glucose level is achieved and there is no risk of hypoglycaemia... Irregular examinations of [the applicant] did not constitute ‘dynamic supervision’, as their frequency was clearly insufficient for the assessment of the patient’s wellbeing in its dynamic ... or for the adjustment of his treatment. 2. ... The seriousness of [the applicant’s] diabetes ... shows that inpatient treatment in a specialised medical facility was required. ... 4. ... The lack of ‘dynamic medical supervision by an endocrinologist’ between 5 April 2010 and 30 November 2011 resulted in the deterioration of [the applicant’s] health. Developed vascular disease (vascular angiopathy of the lower extremities) and encephalopathy, an irreversible brain damage ... were signs of his worsening health. In the absence of dynamic medical supervision, improper adjustment of the medical treatment led to an increased risk of ketoacidosic/hypoglycemic comas...”