CASE OF M.M. v. RUSSIA
Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Dmitry Dedov;Luis López Guerra
5. The applicant was born in 1984 and lives in Babushkin, Republic of Buryatiya, Russia. 6. On 6 January 2005 M.D. was arrested and taken to a police station. Allegedly, police officers threatened him with murder and ill-treatment if he refused to make a confession. In the presence of counsel, he made a written statement confessing to a murder. On 7 January 2005 an investigator compiled an arrest record. 7. On 30 September 2005 another investigator issued a formal decision confirming that M.D.’s real name was M.M., the applicant in the present case before the Court. 8. On 12 March 2007 the Verkh-Isetskiy District Court of Yekaterinburg (“the District Court”) convicted the applicant of murder and sentenced him to ten years’ imprisonment. On 6 June 2007 the Sverdlovsk Regional Court (“the Regional Court”) upheld the judgment. 9. In the meantime, on 4 April 2005 the applicant had tested positive for HIV. 10. According to the applicant, on 30 August 2006 (see below) he learnt that in October or November 2005 Z., a deputy district prosecutor, had given G., the sister of the murder victim, access to the file concerning the criminal charges against the applicant. 11. At a hearing on 30 August 2006 the trial court granted G. victim status in the criminal case (see paragraph 36 below). At the same time, the trial court allowed a decision granting G. victim status to be added to the file (a decision apparently taken in late 2005 by an unspecified authority during the criminal investigation – however, see paragraphs 14-15 below). G. was cross-examined at that hearing. She stated that she had had access to the file and had then told D., the applicant’s relative, about his HIV status to prove that the applicant was not a good person. According to the applicant, G. also disclosed his HIV status to some other neighbours. 12. Between September 2006 and 2010 the applicant unsuccessfully sought the institution of criminal proceedings against G. for the disclosure of private information, which was an offence under Article 137 § 1 of the Criminal Code (see paragraph 38 below). It appears that the applicant also sought the institution of criminal proceedings against Z. in relation to the disclosure of private information involving the use of an official position and abuse of power (Article 137 § 2 and Article 286 of the Criminal Code; see also paragraph 15 below). 13. A pre-investigation inquiry was carried out for the offence allegedly committed by G. 14. In December 2006 Z., the deputy district prosecutor, wrote to the applicant indicating that G. had not been granted victim status, and that the investigator in charge of the case had not provided her with access to the file during the preliminary investigation. 15. In December 2006 the regional prosecutor’s office informed the applicant that G. had been granted victim status and had studied the case file in August 2006, she had not applied for victim status before that time, and there were no grounds for any pre-investigation inquiry in respect of Z. It is unclear whether the applicant took any further action as regards his criminal complaint against Z. 16. As a result of the inquiry in respect of G., a refusal to institute criminal proceedings was issued. It was then overruled. Further refusals to prosecute were issued on 1 October and 26 November 2007 and on 9 February 2008. 17. On 25 November 2008 the District Court refused to carry out judicial review of the refusal dated 9 February 2008. The Regional Court then considered that the applicant was entitled to judicial review and ordered the District Court to re-examine the issue. In the resumed proceedings, on 13 February 2009 the District Court noted that the applicant no longer wished to pursue the judicial complaint, and discontinued it. 18. In the meantime, on 23 January 2009 an investigator had issued a new refusal to prosecute with reference to the expiry of the two-year timelimit for prosecution of an offence under Article 137 of the Criminal Code. The investigator heard D., who confirmed that G. had briefly mentioned the applicant’s HIV status. The investigator’s decision indicates that he considered the disclosure of the applicant’s medical data an established fact. 19. On 28 September 2009 the District Court confirmed the refusal to prosecute dated 23 January 2009. The judge noted (apparently with reference to 2007) that for some time the institution of criminal proceedings had been refused because “at the time no written statement could be obtained from [the applicant] in relation to his complaint”. This had prompted the supervising prosecutor to set aside, among other things, the refusals to prosecute dated 1 October and 26 November 2007 and 9 February 2008. The prosecutor had acted promptly by taking decisions on 5 October and 29 December 2007 and on 30 December 2008. Following each decision, law-enforcement officers had taken measures to interview the applicant (apparently by asking staff at his remand centre to interview him), but “no statement had been received from him”. 20. On 17 March 2010 the Regional Court upheld the judgment of 28 September 2009. The appeal court stated that, while the fact of the dissemination of the applicant’s medical data by G. had been established, she could not be prosecuted, owing to the expiry of the time-limit for prosecution. However, those grounds for discontinuing the case were, in a way, in the applicant’s interest, and it remained open to him to bring civil proceedings against her. 21. In May 2010 the applicant brought civil court proceedings against G., seeking compensation for non-pecuniary damage on account of the disclosure of his HIV status to other people. On 13 September 2010 the District Court discontinued the case because the respondent was a foreign national not residing in Russia. Apparently, the applicant did not appeal. 22. The applicant also lodged a claim under the 2010 Compensation Act. A judge rejected it, noting that the Act did not give standing to a criminal complainant with no “victim” status seeking compensation on account of the length of a pre-investigation inquiry. Apparently, the applicant did not appeal. 23. The applicant provided the following account of his conditions of detention. 24. Between 17 January 2005 and July 2007 the applicant was kept in Yekaterinburg Remand Centre no. 66/1. After his arrival he was placed in cell no. 301, which measured 20 square metres and accommodated five people. This cell had no window, and the temperature in the cell was around 2˚C. There was no bed or bedding. The toilet did not work and was not separated from the main area. 25. On 18 January 2005 the applicant was transferred to cell no. 625, which measured 20 square metres and had six beds, but which actually accommodated seventeen people. The toilet was not separated from the main area. 26. From 19 January to 4 April 2005 the applicant was in cell no. 125, which measured 4 or 7 square metres and accommodated four detainees (or up to six people, according to the applicant’s amended description). 27. From 4 April to 18 May 2005 the applicant was kept in cell no. 204, which measured 20 square metres and had six beds, but accommodated twenty-three to twenty-eight people. 28. From 18 May to 2 June 2005 the applicant was in hospital. It appears that the material conditions of his stay there were acceptable. However, between 24 May and 1 June 2005 he was allegedly ill-treated by medical assistants (also people who had been convicted) who, at the instigation of police officers, tried to extract a confession from him. 29. After being returned to the remand centre, the applicant was placed in cell no. 205, which measured 20 square metres and accommodated up to twenty-five people, despite having only sixteen beds. 30. From 11 July 2005 the applicant was in cell no. 117, which measured 4 square metres and accommodated four detainees. 31. Furthermore, the applicant provided a detailed account of the conditions of his detention between July 2005 and July 2007, conditions which were also cramped or unacceptable and where, at times, he was not able to have an individual bed. 32. Between 2005 and 2009 the applicant lodged numerous complaints in relation to his conditions of detention. For instance, on 15 February 2006 the Prisons Department of the Sverdlovsk Region dismissed one of his complaints, whilst indicating that the actual number of detainees in the remand centre exceeded the design capacity of this detention facility. By a letter of 13 March 2006 the administration of the remand centre informed the applicant that the actual capacity of cells was such as to afford each detainee 2.5 square metres of space, which was a temporary measure related to the overpopulation problem. 33. By a letter of 2 October 2008 the Sverdlovsk prosecutor’s office supervising prisons confirmed that the applicant had been afforded between 0.9 and 3.8 square metres of cell space. 34. By a letter of 2 December 2008 the prosecutor’s office of the Sverdlovsk Region informed the applicant that, following an inspection, it could be not confirmed that the cell toilets were not separated from the main area.