CASE OF MOSKALYUK v. RUSSIA
Violation of Art. 3
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1979 and lives in Moscow. 7. On 2 July 1999 the applicant was arrested on suspicion of robbery and assault and taken to a police station for questioning. He was released the next day on an undertaking not to leave town. On an unspecified date he retained a lawyer to represent him. 8. According to the applicant, on 5 July 1999 P., one of the victims of the assault, identified the applicant as one of the perpetrators. P. confirmed his allegations during the confrontation with the applicant. 9. On 31 August 1999 the prosecutor authorised the applicant’s detention pending investigation and trial. On 17 September 1999 the applicant was taken into custody. 10. The bill of indictment prepared by the police investigator on 22 September 1999 was approved by the prosecutor on 1 October 1999 and subsequently forwarded to the Zyuzinskiy District Court of Moscow. 11. On 12 May 2000 the District Court remitted the matter for additional investigation to the police. The court noted, inter alia, that the investigator had failed to communicate to the applicant the materials from the case file, including the forensic expert’s reports. Following the completion of the investigation, the case file was resent to the court. 12. On 10 October 2000 the District Court granted the applicant’s request to appoint his mother to represent him before the court. 13. On 7 March 2001 the District Court found the applicant guilty as charged and sentenced him to seven years and six months’ imprisonment. The Moscow City Court quashed the applicant’s conviction and remitted the matter for fresh consideration on 5 June 2001. 14. It appears that during the new trial, the District Court refused to appoint the applicant’s mother to represent him. The applicant retained counsel B. as his defender. 15. On 14 September 2001 the applicant asked the court to release him pending trial. He referred to appalling conditions of his detention and his deteriorating health. The court dismissed the applicant’s request. 16. On 14 February 2002 the District Court found the applicant guilty as charged and sentenced him to seven years and six months’ imprisonment. The court based its findings, inter alia, on forensic evidence and the testimonies of the applicant’s accomplice and one of the victims of the assault, who testified in court. Their testimonies were corroborated by the statements made by P., another victim of the assault. The court could not establish P.’s whereabouts and relied on the transcripts of his earlier questioning by the police. 17. The applicant appealed against his conviction. He challenged the lawfulness of the trial court’s findings and alleged that the sentence imposed on him had been too severe. In that respect he mentioned that he had by then spent more than three years in appalling conditions awaiting determination of the criminal charges against him. 18. On 26 June 2002 the Moscow City Court upheld the applicant’s conviction on appeal, dismissing, inter alia, the applicant’s argument that the sentence was too severe. 19. According to the Government, from 17 September 1999 to 13 March 2001 the applicant was detained at remand prison no. IZ-48/2 in Moscow. Between 13 March and 5 July 2001 he was placed in remand prison no. IZ-48/3 in Moscow. On 5 July 2001 the applicant was transferred back to remand prison no. 48/2, where he stayed until 30 May 2002. The applicant did not dispute the information submitted by the Government. 20. According to the applicant, at all times the number of inmates detained in each cell exceeded its capacity. The cells were designed to accommodate twenty to thirty persons. Instead, there were eighty to 100 inmates held there. The number of beds was not sufficient and the inmates had to take turns to sleep. As a result of being detained in such congested conditions for an extended period of time, the applicant contracted tuberculosis. 21. The Government did not provide any information concerning the number of inmates detained with the applicant referring to the destruction of the official relevant records due to the expiration of the statutory time-limit for their storage. 22. On 21 May 2002 the applicant underwent an X-ray examination and was diagnosed with pulmonary tuberculosis. According to the excerpt from his medical file, submitted by the Government, he was examined by a phtisiologist who prescribed him the following medication: isoniazid, pyrazinamide, ethambutol, rifampicin, multivitamins and special food rations. 23. On 30 May 2002 the applicant was transferred to the hospital at remand prison no. IZ-77/1 in Moscow. 24. According to the excerpt from the applicant’s medical file, submitted by the Government, he received the following medication: isoniazid, streptomycin, pyrazinamide, rifampicin and vitamin B. On 6 June 2002 the applicant had a blood test for HIV and syphilis with negative results. On 21 June 2002 he had general blood and urine tests, which showed no anomalies. 25. According to the excerpt from the applicant’s medical file submitted by the Government, on 11 July 2002 the applicant was examined by a doctor, who found him fit for transfer to the correctional colony and authorised his discharge from the prison hospital. The doctor further recommended that the applicant continue in-patient treatment at the colony and indicated that he should undergo another X-ray examination in August 2002. 26. According to the Government, the applicant received special food rations as per applicable domestic standards. His health condition was satisfactory. 27. From 23 July to 21 August 2002 the applicant was transported from Moscow to medical colony no. LIU-10 in the Omsk Region. 28. According to the Government, the conditions of the applicant’s transport were satisfactory. On the train he had an individual sleeping berth. The number of detainees on the train did not exceed the applicable standards. The carriage had natural ventilation, toilet facilities and electric light. The applicant received food and drinking water and was allowed to use the toilet facilities when required. 29. According to the applicant, he did not receive any medical treatment during the whole period of the transfer to the colony. 30. On 21 August 2002 the applicant arrived at medical correctional colony no. LIU-10 in Omsk. He was held there until 14 November 2002. 31. According to the excerpt from the medical file, on 28 August 2002 the applicant was examined by a doctor who noted that the applicant’s health condition was satisfactory and that he did not develop good tolerance to the prescribed medication. The doctor recommended special food rations and out-patient treatment. He compiled a list of medicines for the applicant to be given intermittently, notably every other day. It included ethambutol, rifadin and pyrazinamide. 32. On 1 November 2002 the applicant was examined by a phtisiologist, who noted that the applicant’s condition was satisfactory, his temperature was 36.60C, and he was receiving the necessary food rations. The doctor further recommended the same diet and out-patient treatment prescribed earlier. 33. From 14 November 2002 to 4 January 2003 the applicant was being transported from the Omsk Region to medical correctional colony no. LIU-1 in the Kaluga Region. According to the Government, the conditions of the applicant’s transport were in compliance with the standards established by Article 3 of the Convention. 34. According to the applicant, he received no medical assistance during the whole period of the transfer. 35. On 4 January 2003 the applicant arrived at medical correctional colony no. LIU-1 in the Kaluga Region. According to the Government, he underwent further treatment there and was cured of tuberculosis. 36. On 8 January 2003 the applicant was admitted to hospital in accordance with the decision of the medical panel. In-patient treatment was completed on 27 May 2003. The applicant continued to receive out-patient treatment and on 24 July 2003 the medical panel found him completely cured of tuberculosis. The applicant was discharged from the medical colony. 37. The CPT report on the visit to the Russian Federation carried out from 2 to 17 December 2001 provides as follows: “102. The CPT is also seriously concerned by the practice of transferring back from SIZO to IVS facilities prisoners diagnosed to have BK+ tuberculosis (and hence highly contagious), as well as by the interruption of TB treatment while at the IVS. An interruption of the treatment also appeared to occur during transfers between penitentiary establishments. In the interest of combating the spread of tuberculosis within the law-enforcement and penitentiary system and in society in general, the CPT recommends that immediate measures be taken to put an end to the above-mentioned practice. 38. The relevant extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 2003, provide the recommendations as follows: “4.4 Recommended standardized treatment regimens New cases Treatment regimens have an initial (or intensive) phase lasting two months and a continuation phase usually lasting four or six months. During the initial phase, consisting usually of isoniazid, rifampicin, pyrazinamide and ethambutol, the tubercle bacilli are killed rapidly. Infectious patients quickly become non-infectious (within approximately two weeks). Symptoms abate. The vast majority of patients with sputum smear-positive TB become smear-negative within two months. During the continuation phase, fewer drugs are necessary but for a longer time. The sterilizing effect of the drugs eliminates the remaining bacilli and prevents subsequent relapse.” 39. 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.”