CASE OF DIRDIZOV v. RUSSIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
5. The applicant was born in 1971 and lived until his arrest in the town of Nurlat, in the Tatarstan Republic. 6. On 7 October 2008 criminal proceedings were instituted against the applicant on suspicion of attempted murder. The prosecution’s case was that the applicant had shot Mr M. five times in the course of a property dispute. Two days later an investigator of the Chistopol District Investigative Department issued a wanted notice in respect of the applicant as he had allegedly left his place of permanent residence and gone on the run. 7. On 28 December 2008 the applicant was arrested and was served with a bill of indictment. The charge of attempted murder was joined with another criminal charge against the applicant, of aggravated theft. On the same day a police investigator asked the Chistopol Town Court (Tatarstan Republic) to remand him in custody. The investigator argued that the applicant had been charged with a particularly serious criminal offence, that he could reoffend or influence witnesses, and that he was likely to abscond, given that he had already gone on the run once and a wanted notice had been issued. 8. On 29 December 2008 the Town Court granted the request, having adopted the investigator’s reasoning. In two lines the Town Court stated that the gravity of the charges and the likelihood that the applicant would abscond or reoffend, as well as interfere with witnesses, warranted his placement in custody. The applicant’s arguments that he had not absconded from the investigation, that he had not received any summons or notifications from investigating authorities although he had not left his place of permanent residence, and that he was seriously ill, were dismissed as unsubstantiated. 9. The detention order was upheld on appeal by the Supreme Court of the Tatarstan Republic on 30 January 2009. The appeal court did not see any reasons to doubt the Town Court’s conclusions. 10. On an unspecified date the prosecution authorities amended the charges, having additionally accused the applicant of several counts of aggravated theft and attempted theft and unlawful possession of firearms. 11. The applicant’s detention was extended on a number of occasions. In particular, on 25 February 2009 the Town Court, holding that the applicant was charged with grave criminal offences and was likely to abscond, extended his detention until 28 March 2009. On 25 March 2009, with identical reasoning, it extended the detention until 28 May 2009. Another extension followed on 26 May 2009, when the Town Court mentioned the gravity of the charges and the risk that the applicant would abscond and interfere with witnesses who had testified against him. The final detention order, identical to the three previous ones, was issued on 9 June 2009. 12. On 26 June 2009 the applicant was committed to stand trial before the Nurlat District Court. However, two weeks later the District Court returned the case file to the investigating authorities for certain defects in the bill of indictment to be eliminated. The District Court’s decision was quashed on appeal and the case was sent back to the District Court for examination on the merits. 13. On 19 November 2009 the Nurlat Town Court found the applicant guilty of unlawful possession of firearms and several counts of attempted theft, and dismissed the remaining charges. The applicant was sentenced to three years and two months’ imprisonment. That judgment was quashed on appeal by the Supreme Court of the Tatarstan Republic on 19 March 2010 and the case was sent for a fresh examination. At the same time the Supreme Court, without providing any reasons, remanded the applicant in custody until 19 May 2010. 14. On 28 April 2010 the applicant asked the Nurlat District Court to release him on his own recognisance, arguing that his state of health, in particular the fact that he was suffering from Bechterew’s disease and could not receive the medical treatment he needed in the detention facility, warranted his release. 15. On the same day the District Court dismissed the application for release and extended the applicant’s detention until 19 August 2010, confirming that his detention had been authorised correctly in view of the gravity of the charges against him, his personality and the fact that a search warrant had been issued during the pre-trial investigation. The District Court also noted that, despite the fact that by virtue of the Russian law the applicant’s illness could warrant his release after the conviction, the domestic law did not provide for a possibility to release a detainee on health grounds while the investigation or trial were still pending. By the same decision the court scheduled the first trial hearing for 7 May 2010. 16. On 22 June 2010 the Supreme Court of the Tatarstan Republic upheld the decision of 28 April 2010, endorsing the District Court’s reasoning. 17. During the trial hearing on 29 June 2010 the applicant, who had been carried to the court-house on a stretcher, complained to the District Court that he was experiencing severe back pain and was unable to get off the stretcher and take part in the hearing. He asked the court to stay the proceedings and to authorise his release on his own recognisance, given his state of health. While the prosecutor supported the request for an adjournment, he asked the District Court to extend the applicant’s detention. The District Court agreed that the applicant’s health precluded him from appearing at the trial hearings, stayed the proceedings and extended the detention until 19 November 2010, citing the same reasons as in the previous detention orders. 18. The applicant appealed, complaining that there were no reasons justifying an extension of his detention. He argued that the risk of his absconding was negligible, as he was suffering from Bechterew’s disease, which significantly impaired his movement and was accompanied by severe pain. This was confirmed by a medical panel comprising specialists from the Nurlat District Hospital which had examined him in a courtroom on 29 June 2010. Relying on medical reports, the applicant submitted that his illness was incurable and progressed rapidly. The facility where he was detained did not have means, medical specialists or medicines to provide him with the medical care he needed, which could have reduced the severity of his symptoms. Citing various internal regulations of the Russian Health Ministry and Ministry of Justice, the applicant further argued that the domestic law listed his illness among those which relieved a convict from serving a sentence of imprisonment. At the same time, the conditions of detention in remand facilities were far worse than those in correctional colonies. In the applicant’s opinion, it was only logical to relieve him from being detained in worse conditions in a remand facility, taking into account the state of his health. He also noted that he had never attempted to abscond from the investigation, and the warrant for his arrest had been issued without any valid reasons. 19. On 7 September 2010 the Supreme Court of the Tatarstan Republic upheld the decision of 29 June 2010, noting that the grounds which had warranted the applicant’s detention were still present. 20. The proceedings were resumed on 4 October 2010. On 12 November 2010 the District Court again extended the applicant’s detention for an additional three months, until 19 February 2011. The reasoning employed by the District Court was identical to that of the previous detention orders. 21. On 7 December 2010 the Supreme Court of the Tatarstan Republic, having examined the applicant’s appeal, quashed the decision of 12 November 2010 and authorised the applicant’s release on bail of two million Russian roubles (RUB). The Supreme Court reasoned as follows: “The presented materials indicate that [the applicant] is suffering from Bechterew’s disease and, given the state of his health, he cannot be detained in a temporary detention facility. He is unable to receive the necessary medical assistance in the prison hospital. This is corroborated both by the decision of [the District Court] by which the proceedings had been stayed until [the applicant’s] recovery, and by medical documents enclosed with [the applicant’s] statement of appeal. By virtue of the criminal procedural law the gravity of the charges ... is to be taken into account when a detention is extended, however, the gravity of the charges by itself cannot warrant detention for such a long period. The case file materials indicate that [the applicant] has been detained since 29 December 2008. Neither the investigator’s requests [for extension of the detention] nor the court decisions cite any real circumstances and evidence ... on the basis of which the investigating authorities and the court concluded that, if released, [the applicant] could abscond from the investigation and trial and reoffend. The presented materials indicate that [the applicant] has a permanent place of residence, has no previous convictions, has positive reports on his character, and is the caregiver for two minor children. In these circumstances, the court finds it possible to change [the applicant’s] measure of restraint to bail.” 22. On 15 December 2010 the bail was posted and the applicant was released. Five days later he was admitted to the Nurlat District Hospital for inpatient treatment. 23. On 16 March 2011 the Nurlat District Court found the applicant guilty of several counts of aggravated theft and attempted theft and unlawful possession of firearms, acquitted him of an attempted murder charge and sentenced him to four years and a month of imprisonment to be served in a correctional colony. The applicant was taken into custody in the courtroom. 24. On 27 May 2011 the Supreme Court of the Tatarstan Republic, acting on appeal, quashed the judgment in the part concerning the applicant’s acquittal, sent the matter for reconsideration by the trial court and upheld the remaining part of the conviction. 25. By way of a supervisory-review procedure, the Presidium of the Supreme Court quashed the judgment of 27 May 2011 and sent the case to the appeal court for a fresh examination. 26. On 27 September 2011 the trial judgment of 16 March 2011 became final, with the Supreme Court fully upholding the trial court’s findings. 27. The applicant provided the Court with a large number of medical reports and certificates, describing in detail his medical condition, medical history and the medical assistance rendered to him. 28. In particular, the medical documents indicate that in 1992, during his service in the army, the applicant was diagnosed with reactive arthritis. From 2003 onwards he experienced increasing pain in the lower back. When he sought medical assistance he was diagnosed with Bechterew’s disease. The applicant had treatment in various hospitals on a number of occasions. His condition is characterised by serious and constant pain in the spine, neck, chest, lower part of the back and hip joints, occasional pain in the knee and shoulder joints and hands, frequent shivering, and tightening of the chest, impairing breathing. The applicant has to constantly change position to relieve pain; he also experiences severe pain, lasting up to four hours, while walking. The disease has intense clinical activity and is progressing rapidly. 29. The applicant also produced a number of medical certificates issued as early as January 2009 by civilian doctors, noting that his treatment was impossible in a detention facility. The applicant’s medical condition, given the rapid deterioration of his health, required treatment in a specialised hospital. The doctors also noted that a failure to respect that condition would be a threat to the applicant’s life and would lead to his becoming disabled. On 11 January 2010 a medical assessment panel declared that the applicant was suffering from a Category 3 disability. 30. A medical certificate issued on 12 October 2010 by a doctor at the IZ-16/3 facility, where the applicant had been detained since 11 July 2009, indicates that the facility did not have the medicines which were prescribed for the applicant by a rheumatologist. A similar certificate was issued by the head of the medical unit of detention facility no. IZ-16/3 on 14 April 2010. According to the applicant, in an attempt to replace the absent medicines required for treating him the facility medical personnel provided him with cheaper drugs, which led to an impairment of his hearing and eyesight, kidney and liver damage and loss of the ability to move. He provided the Court with copies of more than forty payment receipts, as well as a number of letters to the head of the detention facility bearing handwritten notes by facility employees, showing that his relatives had regularly bought medicines and given them to the facility authorities, and that the authorities had handed the medicines over to the applicant. 31. Relying on a copy of the applicant’s medical file, the Government submitted that following the applicant’s arrest he was examined by a medical assistant. Given that he was suffering from Bechterew’s disease. he was prescribed diclofenac, an anti-inflammatory drug, and arava, a drug for the treatment of active rheumatoid arthritis. 32. As the applicant continued to complain of severe back pain, prison medical staff examined him on a number of occasions between 15 January and 19 April 2009, and added the following medicines to his regimen: aspirin, omez, tempalgin, duovit, movalis, an anti-rheumatic gel and Dicul’s balsam. The record shows that the applicant’s relatives provided the majority of those medicines. On 22 April 2009 a doctor made an entry in the record stating that the applicant should be sent for a comprehensive medical examination to decide whether to release him on parole. On a number of occasions the attending prison doctors also noted that it was necessary to transfer him to a prison hospital, given the highly progressive nature of the illness. 33. Between 28 April and 27 June 2009 the applicant was mostly seen by a prison nurse or medical assistant. The prison doctor visited him twice, checking whether the applicant had received medicines from his relatives. Each time the medical personnel confirmed the diagnosis, heard the applicant’s complaints, and decided that he should continue with the prescribed treatment. 34. On 11 July 2009 the applicant was transferred to facility no. IZ-16/3. He complained of severe joint pain and asked for a transfer to a prison hospital. On 24 and 31 July 2009 a neurologist and traumatologist from a civilian hospital examined the applicant. They confirmed the diagnosis of Bechterew’s disease with a long list of concomitant conditions, and prescribed treatment and therapeutic physical exercises. The Government submitted that the applicant had refused the treatment. Further requests by the applicant for admission to a hospital for inpatient treatment were addressed by the introduction of another painkiller and a herbal sedative to his regimen. 35. The applicant was admitted to a correctional colony hospital on 21 August 2009, where he underwent a number of tests and continued receiving treatment. He was transferred back to the detention facility less than a month later, on 16 September 2009, with a recommendation that he undergo regular and frequent clinical testing and continue with the treatment. A long list of medicines and a schedule of clinical tests was included in the recommendations. The applicant’s medical file does not contain any entries for the period between 16 September and 30 December 2009, when he was seen by an oculist. 36. Following a forensic medical examination of the applicant, on 11 January 2010 a medical panel declared that he was suffering from a Category 3 disability. No further entries were made in his file until 28 May 2010, except entries detailing that the applicant persistently complained of pain in the back and joints, that he was demanding treatment and an enriched dietary regime, that he was continuing to be treated with medicines provided by his relatives, and that the facility did not have the medicines which had been prescribed by doctors on the applicant’s release from the colony hospital in September 2009. The applicant’s medical file also shows that the facility’s medical staff attempted to amend the applicant’s treatment, given that the medicines prescribed for the applicant were too expensive, and therefore the facility did not have the resources to provide them. 37. On 28 May 2010 the applicant was again transferred to the colony hospital, where he remained until 9 June 2010. The doctors then authorised his transfer back to the detention facility, considering that his condition was satisfactory. 38. Following his transfer back to the detention facility, the applicant continued complaining of severe pain. His condition was considered to be moderately serious. The records also indicate that the applicant could not be seen by medical specialists, and in particular that he could not be seen by a rheumatologist, as the detention facility did not employ one. A medical certificate issued in May 2010 and submitted by the Government described the applicant’s illness as progressing rapidly, and specified that he could only be properly treated in a specialised medical facility: this treatment could not be provided in the environment in which he was being detained. 39. In response to his complaints of increasingly severe pain, the applicant was again admitted to the colony hospital on 23 November 2010, and spent two weeks there. He was released with a recommendation to continue taking medicines and to be seen regularly by a rheumatologist as a main requirement of basic therapy. In January 2011 a medical panel declared that the applicant’s disability had progressed to Category 2 under the medical classification scheme. 40. After he was convicted, on 16 March 2011, the applicant was detained again and placed on a list of inmates in need of close medical supervision. His condition was considered “relatively satisfactory”. He continued complaining of lower back pain and joint stiffness. Without providing specific details on the content of the treatment, the Government submitted that the applicant has been receiving it following recommendations by a rheumatologist. 41. In June 2009 the applicant lodged a complaint with the Chistopol Town Court, stating that he was not receiving the medical assistance he needed in detention and asking to be transferred to a prison hospital in Kazan. 42. By a letter of 24 July 2009 the Town Court returned the applicant’s complaint, with the following remarks: “I return your request ... without an examination because under the criminal procedural law in force courts do not have the authority to authorise the transfer of detainees to prison hospitals. You have to apply to the administration of the detention facility ... with a request for a transfer for medical treatment.” 43. On the same day the applicant lodged another request with the Town Court, seeking a forensic medical examination to determine the current state of his health. In August 2009 the applicant received a copy of a letter addressed to the head of detention facility no. IZ-16/3, by which the Town Court declared its lack of authority to examine the merits of the request. 44. In response to the applicant’s complaint that he was not receiving adequate medical assistance in detention, on 10 July 2009 the office of the Ombudsman of the Russian Federation stated that the complaint had been accepted for examination. No further update on the results of the examination was given to the applicant. 45. Records provided by the Government show that the applicant lodged a large number of complaints about the quality of the medical care at the facilities where he was detained. The applicant argued that he had also sent complaints to various prosecution authorities about lack of medical assistance in detention, and also complained that his health was deteriorating rapidly. He provided the Court with a copy of his complaint to the Prosecutor of the Tatarstan Republic. The copy bears a stamp indicating that the copy was authentic. A handwritten note in the corner of the complaint appears to show that the complaint was received on 24 July 2009 and attached to the applicant’s file. No response followed. 46. The relevant provisions of domestic and international law governing the health care of detainees, including those suffering from HIV and tuberculosis, are set out in the following judgments: A.B. v. Russia, no. 1439/06, §§ 77-84, 14 October 2010; Yevgeniy Alekseyenko v. Russia, no. 41833/04, §§ 60-66 and 73-80, 27 January 2011; and Pakhomov v. Russia, no. 44917/08, §§ 33-39 and 42-48, 30 September 2011. 50. The Ombudsman may receive complaints concerning the actions by federal and municipal State bodies or employees, provided that the complainant has previously lodged a judicial or administrative appeal in this connection (section 16 § 1). 51. Having examined the complaint, the Ombudsman may apply to a court or prosecutor for the protection of the rights and freedoms which have been breached by an unlawful action or inaction of a State official or petition the competent authorities for institution of disciplinary, administrative or criminal proceedings against the State official who has committed such a breach (section 29 § 1). 52. The Ombudsman prepares a summary of individual complaints and he or she may submit to State and municipal authorities recommendations of a general nature on the ways to improve the protection of individual rights and freedoms or suggest legislative amendments to the lawmakers (section 31). 53. Chapter 25 sets out the procedure for the judicial review of complaints about decisions, acts or omissions of the State and municipal authorities and officials. Pursuant to Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation, complaints by suspects, defendants and convicts of inappropriate conditions of detention must be examined in accordance with the provisions of Chapter 25 (point 7). 54. A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the directly higher official or authority (Article 254). The complaint may concern any decision, act or omission which has violated rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on the citizen (Article 255). 55. The complaint must be lodged within three months of the date on which the citizen learnt of the breach of his rights. The time period may be extended for valid reasons (Article 256). The complaint must be examined within ten days; if necessary, in the absence of the respondent authority or official (Article 257). 56. The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. If necessary, the court may obtain evidence on its own initiative (point 20 of Ruling no. 2). 57. If the court finds the complaint justified, it issues a decision requiring the authority or official to fully remedy the breach of the citizen’s rights (Article 258 § 1). The court determines the time-limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full (point 28 of Ruling no. 2). 58. The decision is dispatched to the head of the authority concerned, to the official concerned or to their superiors, within three days of its entry into force. The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt (Article 258 §§ 2 and 3). 59. Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article 1064 §§ 1, 2). 60. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069). Irrespective of any fault by State officials, the State or regional treasury are liable for damage sustained by a citizen on account of: (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure; and (iii) unlawful administrative punishment (Article 1070). 61. Compensation for non-pecuniary damage is effected in accordance with Article 151 of the Civil Code and is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated if the damage was caused: (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment: or (iii) through dissemination of information which was damaging to the victim’s honour, dignity or reputation (Article 1100). 62. The Russian legal regulations of detention are explained in the judgment of Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009).