CASE OF YEVGENIY BOGDANOV v. RUSSIA
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 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);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)
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1983 and lives in the town of Akhtubinsk, in the Astrakhan Region. 6. Since 2002 the applicant has been infected with hepatitis C. 7. On 20 December 2002 the applicant was arrested on suspicion of knifepoint rape with an accomplice. 8. On 22 December 2002 the Astrakhan Region Akhtubinsk Town Court (“the Town Court”) remanded him in custody pending trial. The court noted that the applicant was suspected of a serious criminal offence, and held that if he remained at large he might abscond from the investigation and the court and continue his criminal activity. 9. On 19 February 2003 the Town Court extended the applicant’s detention until 20 March 2003. 10. On 20 March 2003 the Town Court held that the preventive measure should remain unchanged and should be extended until 20 April 2003. The court reiterated that the applicant had been charged with a serious criminal offence and that gave grounds to believe that if released he might continue his criminal activity. In addition the court noted that he should not be released, because this might prevent the investigator from performing certain investigative actions. 11. On 18 April 2003 the Town Court ordered the extension of the applicant’s detention until 20 May 2003. It endorsed the reasons for the extension of his detention which had been given before. It also noted that the investigating authorities needed time to perform certain investigative actions, to draft a bill of indictment, and to provide him with an opportunity to study his case file. It further observed that the applicant’s neighbours had given negative references regarding his character. 12. On 12 May 2003 the Town Court granted the investigator’s request to extend the applicant’s detention. The request was based on the arguments that the applicant was suspected of a serious crime, and that if released he might abscond. The investigator also noted that he had to perform certain investigative actions and ensure that the applicant had the opportunity to acquaint himself with the case file. The applicant argued that he was a student who had a stable place of residence, and that he could not abscond as he required in-patient medical treatment for his hepatitis C. He also provided some positive references concerning his character. The court accepted the investigator’s arguments, and extended the detention until 20 June 2003. 13. The applicant appealed against the order of 12 May 2003, complaining that insufficient reasoning had been given for that decision. He also noted that his arguments had not been addressed by the Town Court, and that the investigating authorities had unnecessarily extended the period for his familiarisation with the case file. 14. On 23 June 2003 the Astrakhan Regional Court (“the Regional Court”) dismissed the applicant’s claim. It held that his arguments could not constitute grounds for the overturning of the impugned order on appeal. 15. On 20 June 2003 the investigator applied for an extension of the applicant’s detention for two months to give the applicant an opportunity to study the case file. In response to the applicant’s arguments, the Town Court noted: “... The circumstances cited by the investigator [concerning the need to ensure the applicant’s familiarisation with the case file] were already [sufficient] grounds for the detention orders of 18 April and 12 May 2003. The case file contains the order of 16 June 2003, which provides that [the applicant] had until 30 June 2003 to study the case file. Accordingly, the extension of his detention for two months is an excessive measure. During the hearing the investigator and the prosecutor referred to their busy schedule, which prevented the authorities from ensuring [the applicant’s] familiarisation with his 400-page file on a daily basis. The study of the file required the applicant to be transported from a temporary detention facility to a court building. However, those arguments cannot be accepted by the court, as they are not compatible with the requirements of Article 5 § 3 of the Convention, which provides that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The court finds that the investigating authorities unnecessarily extended the investigation. Accordingly, the request in question should be partly dismissed ...” Taking into account the above, the court extended the applicant’s detention for one month, until 20 July 2003. 16. On 11 July 2003 the Regional Court quashed the decision of 20 June 2003 on procedural grounds, finding that the Town Court only had power either to uphold the investigator’s request or to reject it. The Code of Criminal Procedure of Russia did not allow such requests to be granted in part. 17. On 18 July 2003 the Town Court extended the applicant’s detention until 20 August 2003. This decision referred to the fact that the applicant was accused of a serious offence and that there was a need to perform “certain investigative actions”. 18. On 8 August 2003 the Regional Court upheld the decision of 18 July 2003 on appeal. It rejected the applicant’’s character and the necessity to perform “some investigative actions”. 19. On 2 July 2003 the applicant’s case file was remitted to the Town Court for examination on the merits. 20. By virtue of a decision of 14 July 2003 the Town Court ordered a preliminary court hearing in the applicant’s criminal case. In the descriptive part of this decision the court mentioned, among other things, that the measure of restraint which had been applied to the applicant must remain unchanged. The judge set no time-limits for the applicant’s detention. No separate court order with regard to the applicant’s detention was issued until 26 December 2003. 21. On 26 December 2003 the prosecution applied to the court for an extension of the applicant’s detention until 30 March 2004. It noted that the applicant was suspected of a serious criminal offence, and held that if released he might abscond from the investigation and the court and obstruct the establishment of the truth in the case. The applicant applied for release on bail, stating that he was suffering from hepatitis C and that there were no circumstances which would be capable of justifying the excessive length of his detention. The court refused his application. It held that the grounds for his detention remained unchanged and that he could receive medical treatment for hepatitis C in a detention facility. The applicant’s detention was extended until 30 March 2004. 22. On 18 March 2004 the Town Court extended the applicant’s detention until 30 June 2004. The court once again relied on the seriousness of the charges against the applicant. No other grounds for his detention were provided by the court. 23. On 15 June 2004 the Town Court extended the detention until 30 September 2004. This time the court referred to the seriousness of the charges and to the risk that if at liberty he could hamper the establishment of the truth in the case. 24. On 16 June 2004 the applicant appealed against the decision of 15 June 2004. His claim was received by the appeal court on 16 July 2004. 25. On 12 August 2004 the Regional Court upheld the impugned decision of 15 June 2004 on appeal. The appeal court added a new argument. It stated that the parties had significantly contributed to the length of the trial proceedings. This was due in particular to the fact that the last court hearing was adjourned owing to the absence of the defence lawyer, who was unwell. Taking into account the above and the information on the applicant’s character, the Regional Court found that his detention should not be lifted. By virtue of a decision of 14 January 2005 the higher court refused to review the applicant’s detention. 26. On 29 September 2004 the Regional Court examined a new application by the prosecuting party for an extension of the detention. Relying on the seriousness of the charges and the risk of absconding, the court extended the applicant’s detention until 30 December 2004. 27. On 12 October 2004, referring to the progress of his hepatitis C, the applicant asked the court to change his detention to house arrest. The Town Court refused, observing that he had been offered medical treatment but had refused to undergo such treatment in the detention facility; he had thereby deliberately damaged his own health. 28. On 28 December 2004 the Town Court examined the investigator’s application for an extension of the applicant’s detention and the defence’s request for a change to the measure of restraint. The court restated its earlier reasoning, and approved the extension of the detention until 30 March 2005. 29. On 12 January 2005 the Town Court ordered a psychiatric examination of the applicant. On 3 March 2005 he was transferred from the remand prison to a psychiatric hospital. 30. On 30 March 2005, after the psychiatric examination, the applicant was returned to a temporary detention facility. 31. On 30 March 2005 the Town Court once again extended his detention and dismissed his request for the release on bail. It repeated that the grounds for the applicant’s detention remained unchanged, that the applicant was accused of a serious offence, and that if released he could obstruct the criminal investigation. The detention was extended until 30 June 2005. 32. The applicant’s pre-trial detention ended on the day of his conviction, 30 May 2005. 33. On 8 July 2003 the prosecution case file was received by the Town Court. 34. On 30 May 2005 the Town Court convicted the applicant of knifepoint rape and sentenced him to eight years’ imprisonment. 35. On an unspecified date in 2005 the Regional Court upheld the sentence on appeal. 36. After the applicant’s arrest of 20 December 2002 he was placed in the temporary detention facility of the Akhtubinsk Department of the Interior of the Astrakhan Region (“the Akhtubinsk IVS”) and then remand prison IZ-30/1. He was detained in these two facilities intermittently during two years, nine months and two days, up to 25 October 2005. It appears that the principal location of his detention during this period was IZ-30/1 and that he was held in the Akhtubinsk IVS or transported there on several occasions to enable him to take part in the investigation, acquaint himself with the criminal case file, attend hearings concerning the extension of his detention (on 22 December 2002, 20 March, 18 April, 12 May, 20 June, 18 July, 26 December 2003, 18 March, 15 June, 12 August, 29 September, 12 October and 28 December 2004 and 30 March 2005) and hearings of his criminal case (as a minimum 28 July, 7 and 22 August and 30 September 2003, 14 April, 5 and 17 May, 15 June, 29 September, 30 November and 1 and 16 December 2004, and 26 April and 30 May 2005). 37. According to the applicant, his cell measured approximately 13.3 square metres and housed twelve to twenty persons, some of whom were suffering from tuberculosis. It was not equipped with individual sleeping places. The detainees had to sleep on a forty-centimetre podium which provided sleeping places for eight or nine of them. The interior walls were covered with rough cement. The cell was infested with rats, lice, ants, flies and other insects. It was filled with tobacco smoke, because the access of fresh air was blocked. The ventilation system did not work and the only window in the cell was covered by a metal sheet. The cell had only one 100watt lamp, which was on day and night. During the summer the temperature in the cell was around 40 degrees Celsius. In the winter the detainees suffered from “terrible cold”. They could not leave the cell without authorisation and were not allowed to move freely around the facility. Two or three times a day they were escorted to toilet facilities in groups of three to five. The cell was not equipped with a lavatory pan or running water. Inmates were provided with a single bucket for both waste and lavatory purposes. The bucket serving as a lavatory was not separated from the rest of the cell, and thus offered no privacy. The applicant and his cellmates had two meals a day of very poor quality at 2 p.m. and 6 p.m. All of them ate from one four-litre pan using five spoons. 38. The applicant also submitted a formal warning of 15 June 2004 no. 16-43-2004, issued by the Akhtubinsk Prosecutor’s Office (“the Prosecutor’s Office”) and addressed to the Head of the Akhtubinsk IVS. It reads as follows: “The inspection report indicates that Akhtubinsk IVS does not satisfy the requirements of domestic legislation applicable to detention facilities. It is not equipped with medical staff. Accordingly, prophylactic and anti-epidemic measures are not performed. The detainees’ clothes and bedding are not disinfected on a regular basis. The register of medical examinations, the sanitary register and the register of disinfection are not properly completed. The detainees are not examined on admission by a medical professional. The authorities do not ensure a weekly shower. The above leads to the detention of persons with various infections, sexually transmitted diseases, skin diseases, mental disorders and other diseases alongside healthy inmates. This causes the spread of diseases among the detainees ... and the staff members of the Akhtubinsk IVS. It has been stated that the Akhtubinsk Department of the Interior, Astrakhan Region, has a medical assistant who carries out superficial inspections of the Akhtubinsk IVS, and assesses whether the domestic standards are complied with. This is not so. This person cannot be considered an employee of the Akhtubinsk IVS, because he does not carry out the entirety of the duties of such a post. The Prosecutor’s Office has already warned the detention facility’s management about the inappropriate sanitary conditions in the Akhtubinsk IVS, but no effective action has been taken by the authorities. In view of the above, and the provisions of section 24 of the Federal Law pertaining to the Prosecutor’s Office (“the Prosecutor’s Office Act”)” I prescribe: 1. An internal investigation to determine whether a disciplinary punishment should be applied to the responsible officials. 2. Effective measures to prevent and put right violations of the Federal Law pertaining to detention of suspects and accused persons (“the Suspects and Accused Persons (Detention) Act”. 3. Action to comply with this warning without delay: the Prosecutor’s Office to be informed within one month of the action that has been taken.” 39. The Government argued that applicant’s cell was disinfected on a regular basis and that he was provided with meals in line with the expected standards. They agreed that overall the conditions of his detention in the Akhtubinsk IVS were incompatible with the requirements of Article 3 of the Convention. 40. The applicant stated that the conditions of his detention in IZ-30/1 had been appalling. 41. The Government noted that the applicant was held in IZ-30/1 on many occasions between 23 January 2003 and 25 October 2005. Their submissions as regards the conditions of detention in IZ-30/1 may be summarised as follows: 42. According to the Government, the applicant was at all times provided with an individual bed and bedding, even though the personal space afforded to him was, on certain occasions, less than the statutory 4 sq. m per person. The applicant was provided with three meals per day. The quality of the food was subject to the requisite quality control. 43. Every cell in the remand prison where the applicant was detained was equipped with powered ventilation. The ventilation system was in working order. Natural ventilation was achieved by means of trickle vents in the windows. The temperature in the cells was between 18 and 25 degrees Celsius. The heating and water supply were in compliance with the applicable standards. There were no metal bars on the windows. Accordingly, access to daylight was not blocked. The artificial lighting was in compliance with the applicable specifications; there were two lamps, of 100 watts and 60 watts, which were on from 6 a.m. to 10 p.m. and from 10 p.m. to 6 a.m. respectively. 44. The toilet was separated from the living area of the cell by a two metre high brick or metal screen ensuring privacy. The cells were regularly cleaned and disinfected. 45. Detainees were permitted to take a shower at least once a week for not less than fifteen minutes. 46. The Government lastly submitted that the detention facility had had a fully equipped medical station. 47. The applicant submitted that he had been frequently transported between the Akhtubinsk IVS and IZ-30/1 during his detention in these two facilities and that the conditions of his transportation had been appalling. First, he was deprived of the opportunity to sleep, because he was taken out of his cell at 11 p.m. and returned there at 3 a.m. Secondly, on the days of transportation the applicant did not receive any food (including travel rations) or water and on every occasion the prison vans were severely overcrowded. Lastly, during the transfers the detainees had to use a bottle or a plastic bag to wash themselves. There was also no possibility to use the toilet. 48. The Government provided the Court with the date of the applicant’s transfers (see paragraph 36 above), but did not submit any other information about the conditions of the applicant’s transportation. 49. The applicant stated that before his arrest he had contracted hepatitis C. During pre-trial detention he was placed in a cell with other detainees who were infected with tuberculosis, leading to his contracting that disease. He further stated that during the detention he suffered from dermatosis and dental problems. According to the applicant, he was neither provided with adequate medical treatment nor with an appropriate diet. 50. In accordance with a medical report of an unspecified date, submitted by the Government, during the applicant’s detention he was provided with adequate medical treatment. The report reads as follows: “Retrospective analysis of the submitted medical records confirm that [the applicant] had been suffering from hepatitis C since 2002. During his detention [the applicant] underwent several medical examinations and received medical treatment. The last [in-patient] treatment was provided in August 2008 in the hospital of IZ-2. The results of his medical examination indicate that [the applicant] had chronic hepatitis C of low activity. In connection with this he underwent basic treatment and antivirus treatment. He was provided with hepatoprotectors and vitamins. At the present time [the applicant] continues to receive pathogenetic and aetiological treatment. On 23 January 2003 at admission to IZ-30/1 he underwent an X-ray examination, [which indicated no pathology] of the lungs. In 2003 and 2004 [the applicant] had two such examinations. During his stay in IZ-30/1 he was often transported to the Akhtubinsk IVS to take part in court hearings or investigative actions. In 2004 he complained of weakness, pain in the right part of his stomach and a bitter taste in his mouth. Owing to these complaints he was diagnosed with hepatitis and on 4 March 2004 he was sent to a regional hospital, were he underwent a complex medical examination. This examination indicated that he had infiltrative tuberculosis in the lower part of his right lung, pneumonia and hepatitis C. After anti-inflammation and anti-bacterial treatment the aforementioned diagnosis was confirmed. [The applicant] was transferred to [a special hospital] where he received specific complex anti-tuberculosis treatment from 30 March to 29 April 2004. Later, the patient refused further in-patient treatment and was transported to IZ30/1. On 14 May 2004 an expert panel of the regional anti-tuberculosis clinic confirmed the diagnosis and concluded that his treatment had been prompt and adequate and had led to a positive health outcome. On 14 February 2005 the expert panel stated that the [applicant] had recovered from tuberculosis. Only some insignificant traces of the disease remained in his lungs. Until the patient’s departure for a penal colony on 25 October 2005, he received anti-relapse treatment. [The applicant’s] disease was apparently caused by his frequent transportation to the IVS, chronic stress, hepatitis C, his anti-social behaviour and smoking. The patient’s disease was promptly diagnosed by means of an X-ray examination, and efficiently treated in line with the relevant standards.” 51. The Government also submitted the applicant’s voluminous medical records, covering the period from 2003 to 2008. They show that during his detention the applicant underwent ten X-ray examinations, several HIV tests, and a variety of other medical examinations, including blood tests. Besides the history of his tuberculosis and hepatitis treatment, the medical records contain information about the treatment of his skin diseases. Thus, in January 2004 following his complaints regarding itching, the applicant was examined by a doctor, diagnosed with streptodermosis and provided with an ointment. In February 2004 he was diagnosed with a recent dermatitis and was also provided with ointments and other medicines. From 2005 to 2008 he did not complain about skin problems. On one occasion in June 2004 the applicant complained of headache. In connection with this, he was examined by a psychiatrist, who confirmed that he had no mental disorders and prescribed him nootropil and vitamins. 52. On 17 September 2004 the applicant applied to the Prosecutor’s Office for criminal proceedings to be instituted against the management of the Akhtubinsk IVS, who had put him in the same cell as infected detainees and failed to ensure the compatibility of the conditions of his detention with the minimum standards set forth by domestic law, and had failed to provide him with adequate medical assistance. 53. On 27 September 2004 the applicant’s complaint was dismissed. The Prosecutor’s Office agreed that the conditions of the applicant’s detention did not fully satisfy the requirements of domestic law and that there were some omissions on the part of the management. However, it concluded that the management’s actions did not amount to a criminal offence. The Prosecutor’s Office did not specify the established omissions of the prison authorities. 54. On 12 December 2004 the applicant challenged the aforementioned decision in court under Article 125 of the Russian Code of Criminal Procedure. 55. On 13 January 2004 the Town Court allowed the applicant’s claim and quashed the impugned decision, because the Prosecutor’s Office had not provided details of the management’s omissions. 56. No further decisions concerning the outcome of the examination of the applicant’s complaints were submitted by the parties. 57. There is no information about the examination of the applicant’s subsequent complaints of 16, 17, 19, 25, 26 and 27 July 2005, which were sent to the Prosecutor’s Office. 58. On 7 and 14 September 2005 the applicant lodged two claims with the Town Court, seeking compensation for damage to his health and for non-pecuniary damage, which he alleged had been caused by the inadequate conditions of his detention in the Akhtubinsk IVS and remand prison IZ30/1. 59. By decisions of 14 and 17 September 2005 the Town Court left the claims pending the awaited rectification of their procedural defects. The applicant was invited to clarify the list of the defendants and the factual circumstances of the alleged violations of his rights. 60. Later the applicant’s claims were returned unexamined on the merits, as the Town Court concluded that he had failed to comply with the court’s recommendations. 61. The applicant did not challenge the Town Court’s decisions on appeal.