CASE OF VASILYADI v. RUSSIA

THIRD SECTION

CASE OF VASILYADI v. RUSSIA

(Application no. 49106/09)

JUDGMENT

STRASBOURG

22 November 2016

This judgment is final but it may be subject to editorial revision.

In the case of Vasilyadi v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Helena Jäderblom, President,
Dmitry Dedov,
Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 3 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 49106/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vadim Grigoryevich Vasilyadi (“the applicant”), on 10 August 2009. Following the applicant’s death, on 9 December 2011 his mother, Ms Nina Nikolaevna Vasilyadi, expressed her wish to pursue the application.

2. The applicant, and later his mother, were represented by Mr P. Finogenov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had not received adequate medical care in detention and that his pre-trial detention had been unjustified.

4. On 10 March 2010 the application was communicated to the Government.

5. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it, as the present case is the subject of well-established case law of the Court (see, among other authorities, Dirdizov v. Russia, no. 41461/10, §§ 75-91, 92-100 and 108-111, 27 November 2012 and Koryak v. Russia, no. 24677/10, §§ 74-96 and 102-110, 13 November 2012).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977, and lived until his arrest in the town of Krasnyy Sulin, Rostov Region. He died in a prison tuberculosis hospital in Rostov-on-Don.

A. Criminal proceedings

1. Trial

7. On 27 March 2007 the applicant was arrested on suspicion of having been involved in drug trafficking. He was remanded in custody.

8. Two days later the Krasnyy Sulin Town Court of the Rostov Region authorised the applicant’s detention, having noted the gravity of the charges against him and the possibility of his absconding and reoffending in the light of the fact that he had not been living at his registered address in Krasnyy Sulin at the time of his arrest. The court also noted that the fact that the applicant was suffering from tuberculosis did not negate the indicated risks.

9. The applicant’s case was joined to the case of Ms P., his alleged accomplice. The two defendants were to stand trial together before the Town Court.

10. On several occasions the Town Court extended the detention of the two defendants, each time using similar wording, citing the gravity of the charges and the lack of any change in the circumstances and risks which had initially warranted their detention.

11. On 6 September 2007 the medical authorities informed the Town Court that the applicant’s state of health did not allow him to attend court hearings. On the same day the proceedings were stayed until his recovery.

12. On 29 October 2007, after receiving notice of the applicant’s expected discharge from a prison hospital, the Town Court resumed the proceedings and scheduled a hearing for 26 November 2007.

13. Two days later the head of the prison hospital informed the Town Court that the applicant’s medical condition warranted further treatment in the hospital. The date of his discharge was unclear.

14. On 26 November 2007 the Town Court again stayed the proceedings until the applicant’s recovery and collectively extended his and Ms P.’s detention for three months, until 29 February 2008, employing the same reasoning as on the previous occasions. The detention order contained no detailed assessment of the accuseds’ individual circumstances.

15. In January 2008 the prison hospital informed the Town Court that the applicant was receiving treatment and that it was impossible to predict the date of his discharge.

16. It appears that at some point the proceedings against Ms P. were disjoined from those of the applicant.

17. The Town Court continued regularly extending the applicant’s detention, citing the gravity of the charges and the risks of his absconding or reoffending.

18. In April and May 2008 the Town Court and the prison hospital exchanged correspondence concerning the applicant’s state of health. The medical authorities stated that the patient was unable to attend owing to a risk of his spreading tuberculosis.

19. Towards the end of August 2008 the Town Court asked the medical authorities to allow a hearing on the hospital premises. The head of the prison hospital agreed and on 12 September 2008 the proceedings resumed.

20. On 25 September 2008 the Town Court found the applicant guilty of two counts of the production and attempted sale of opium and sentenced him to six years’ imprisonment.

21. On 27 January 2009 the Rostov Regional Court quashed the judgment on appeal and remitted the case for fresh consideration, ordering that the applicant remain in custody.

2. Retrial

22. In the course of the new round of proceedings the Town Court, on a number of occasions, authorised the applicant’s continued detention. Each time the gravity of the charges and the risks of his re-offending and absconding served as the reason for the extension. The extension orders were formulated in the same standard manner. The applicant did not attend the hearings as his tuberculosis remained contagious. The orders were upheld on appeal.

23. On 14 May 2009 the Town Court decided to stay the proceedings until the applicant’s recovery. The applicant appealed.

24. The proceedings were resumed less than a month later at the request of the applicant. The hearings were to be held on the hospital premises.

25. On 23 June 2009 the Town Court found the applicant guilty of drug trafficking and sentenced him to four years’ imprisonment.

26. On 14 July 2009 the Regional Court upheld the most recent detention order, stating as follows:

“The [case-file] materials ... show that the preventive measure was imposed [on the applicant] in conformity with the requirements of law. The circumstances of the case were [also] taken into account [by the court], as well as information about [the applicant’s] personality.

[The Town Court] came to the correct conclusion that the circumstances that had [indicated the necessity for] the applicant’s detention had not changed. Its conclusion that no other preventive measure might be applied to [the applicant] could not be disputed.”

27. On 25 August 2009 the Rostov Regional Court upheld the applicant’s conviction.

B. Medical treatment in detention

28. In 2006, prior to his arrest, the applicant was diagnosed with advanced tuberculosis, pleurisy, and inflammation of the tissue layers lining the lungs and inner chest wall. He was treated in the Rostov Regional State Tuberculosis Hospital.

29. Following his arrest on 27 March 2007, the applicant was admitted to remand prison no. IZ-61/3 in Novocherkassk. During the admission procedure the applicant informed the prison authorities that he was suffering from tuberculosis. A chest X-ray examination on 9 April 2007 revealed that both his lungs were damaged by an active, advanced form of tuberculosis and that the right lung was partially collapsed on account of the presence of air in the thorax. The condition was further complicated by pleurisy. A course of drugs, dietary nutrition and the drainage of fluid from the pleural cavity were prescribed.

30. The parties disagreed on whether the applicant had received the prescribed treatment. While a report by the detention authorities in April 2010 stated that he had been given the treatment in full, the applicant’s medical file did not contain any information confirming that he had complied with the course of drug treatment.

31. On 8 August 2007 the applicant’s health deteriorated and he was taken by ambulance to the prison tuberculosis hospital in Rostov-on-Don. The applicant was regularly examined by doctors, underwent various medical tests and received treatment for tuberculosis. His right lung was drained after the insertion of a chest tube.

32. On 9 January 2008 a drug susceptibility test was performed. It revealed that the applicant’s tuberculosis was resistant to five drugs, including those which had been given to him in the hospital. Several days later his drug treatment was amended and the illness was brought under control.

33. On 3 June 2008 pulmonary surgery was prescribed by the head of the hospital’s surgical unit.

34. According to a medical report of 28 April 2010 submitted by the Government, three days later the applicant’s health worsened and it was no longer possible to perform the prescribed operation. The applicant’s medical file does not contain any records regarding the deterioration of his health during that three-day period.

35. Regular chest X-ray examinations carried out in the subsequent period revealed the development of complications and showed no improvement in the course of the disease. The applicant was recommended a non-surgical course of treatment.

36. The applicant’s medical file shows that at the beginning of January 2009 he several times refused to follow a round of drug therapy. On 30 January 2009 he consulted a psychologist and a psychiatrist on this matter.

37. On 5 June 2009 a tuberculosis specialist established that the applicant’s infection was spreading and that his overall condition had worsened to the extent that surgical intervention was no longer possible. The applicant started undergoing new, multi-drug therapy under the close supervision of doctors. On 3 December 2009 and 12 February 2010 the doctors confirmed that the applicant could not undergo the prescribed pulmonary surgery due to the continuing deterioration in his health.

38. On 29 October 2010 a medical panel concluded that the applicant’s condition warranted his early release from detention.

39. On 10 November 2010 the Town Court ordered the applicant’s release on health grounds.

40. Four days later he died in detention of tuberculosis.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

A. Medical care afforded to detainees

41. The relevant provisions of Russian and international law on the medical care of detainees are set out in the following judgments: Ivko v. Russia, no. 30575/08, §§ 55-63, 15 December 2015; Amirov v. Russia, no. 51857/13, §§ 50-57, 27 November 2014; Pakhomov v. Russia, no. 44917/08, 30 September 2011; and Yevgeniy Alekseyenko v. Russia, no. 41833/04, 27 January 2011.

B. General guidelines for tuberculosis treatment

42. The following are extracts from the Treatment of Tuberculosis: Guidelines, fourth edition, World Health Organisation, 2009,

“2.6. ... Previously treated patients have received 1 month or more of anti-tuberculosis drugs in the past, may have positive or negative bacteriology and may have disease at any anatomical site. They are further classified by the outcome of their most recent course of treatment ...

3.6. Previous tuberculosis (“TB”) treatment is a strong determinant of drug resistance, and previously treated patients comprise a significant proportion (13%) of the global TB notifications in 2007.

Of all the forms of drug resistance, it is most critical to detect multidrug resistance (“MDR”) because it makes regimens with first-line drugs much less effective and resistance can be further amplified. Prompt identification of MDR and initiation of MDR treatment with second-line drugs gives a better chance of cure and prevents the development and spread of further resistance ...

3.7. Standard regimes for previously treated patients

The Global Plan to Stop TB 2006–2015 sets a target of all previously treated patients having access to [drug susceptibility testing] at the beginning of treatment by 2015. The purpose is to identify MDR as early as possible so that appropriate treatment can be given ...

Recommendation 7.1

Specimens for culture and drug susceptibility testing (DST) should be obtained from all previously treated TB patients at or before the start of treatment. DST should be performed for at least isoniazid and rifampicin ...

Recommendation 7.2

In settings where rapid molecular-based DST is available, the results should guide the choice of regimen.”

C. Extension of detention

43. Russian legal regulations and international documents in respect of detention during pre-trial and judicial proceedings are summarised in Zherebin v. Russia (no. 51445/09, §§ 27-31, 24 March 2016); Pyatkov v. Russia (no. 61767/08, §§ 48-68, 13 November 2012); and Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009).

THE LAW

I. PRELIMINARY CONSIDERATIONS: THE LOCUS STANDI OF THE APPLICANT’S MOTHER

44. The Court must first address the issue of Ms Vasilyadi’s entitlement to pursue the application introduced by her son. The Government did not comment.

45. The Court notes that it normally permits the next of kin to pursue an application, provided he or she has a legitimate interest, where the original applicant died after lodging the application with the Court (see Murray v. the Netherlands [GC], no. 10511/10, § 79, 26 April 2016; Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII; and Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 172, 25 November 2014). Having regard to the subject matter of the application and all the elements in its possession, the Court considers that the applicant’s mother has a legitimate interest in pursuing the application and that she thus has the requisite locus standi under Article 34 of the Convention (see Koryak, cited above, §§ 58-68, 13 November 2012). It therefore finds that Ms Vasilyadi has standing to pursue the application.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

46. The applicant complained that he had not been afforded adequate medical treatment in detention. His complaint falls to be examined under Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Submissions by the parties

47. The Government put forward two lines of argument. Firstly, they argued that the applicant’s claim should be rejected for non-exhaustion of domestic remedies. They stated that the applicant should have raised his complaint before the domestic authorities, such as the administrative authorities of the detention facilities, a prosecutor’s office or a court. Secondly, they argued that the applicant had been provided with the requisite medical treatment. Pulmonary surgery had not been performed as the applicant’s unstable health had not allowed this.

48. The applicant argued that the medical assistance afforded to him had been deficient. The authorities had not provided him with the prescribed medications and had failed to carry out vital surgery.

B. The Court’s assessment

1. Admissibility

49. While assessing the Government’s argument that the applicant had failed to exhaust the available avenues of domestic protection regarding the allegedly inadequate medical treatment, the Court reiterates that it has consistently held that the remedies proposed by the Government did not satisfy the relevant criteria (see Ivko, cited above, §§ 85-88; Khalvash v. Russia, no. 32917/13, §§ 49-52, 15 December 2015; Patranin v. Russia, no. 12983/14, §§ 82-88, 23 July 2015; Koryak, cited above, §§ 82-86; and Reshetnyak v. Russia, no. 56027/10, §§ 65-73, 8 January 2013). Therefore the Court rejects this argument.

50. The Court notes that the applicant’s complaint under Article 3 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General principles

51. The applicable general principles were recently summarised in the case of Ivko (cited above, §§ 91-95).

(b) Application of the general principles to the present case

52. Turning to the circumstances of the present case, the Court notes that at the time of the applicant’s arrest he was suffering from tuberculosis and pleurisy. Throughout the detention the applicant’s pulmonary condition continuously deteriorated, until he died in detention of tuberculosis. The Court has to look carefully at the quality of medical treatment afforded to the applicant in custody.

53. The Court firstly reiterates the applicant’s argument, disputed by the Government, that the remand prison authorities failed to provide him with the prescribed drugs. Taking into account the fact that at the relevant time the applicant was under the authorities’ control, the Court considers that the onus is on the Government to prove that the prescribed medication was indeed administered (see Kolesnikovich v. Russia, no. 44694/13, § 74, 22 March 2016). However, the Government failed to submit any documents recording the applicant’s drug intake between 27 March and 8 August 2007. In these circumstances, and having regard to the continuous worsening of his health in the relevant period and the applicant’s hospitalisation, the Court accepts the applicant’s submissions. It considers the authorities’ failure to provide him with the prescribed medication to constitute a serious shortcoming.

54. The Court is also mindful of another grave deficiency in the medical services rendered to the applicant – specifically, the belated performance of the drug susceptibility test.

55. While the detention authorities became aware of the applicant’s untreated tuberculosis in March 2007, he was only tested for drug resistance in January 2008 – that is about ten months later (see paragraph 32 above). The test revealed that the applicant’s tuberculosis infection was resistant to several of the antibacterial drugs being used in his treatment.

56. The Court notes the authorities’ failure to perform a drug-susceptibility test in a timely fashion. The importance and value of this test is attested to by the guidelines of the World Health Organisation (see paragraph 42 above). Given the applicant’s history of unsuccessful tuberculosis treatment, there was a crucial necessity to perform this test. In particular, it was impossible to choose an appropriate course of treatment for the applicant without first testing him for drug resistance. The Court has already commented on delays in recommending and performing a drug susceptibility test in the initial stages of the diagnostic process (see Ivko, cited above, § 105; Kushnir v. Ukraine, no. 42184/09, § 146, 11 December 2014; Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 90, 22 November 2011; and Gladkiy v. Russia, no. 3242/03, § 93, 21 December 2010). As a result of the authorities’ failure to perform to this vital test, the prospects of the applicant’s recovery significantly diminished.

57. Given the seriousness of the aforementioned deficiencies in the applicant’s medical treatment, the Court does not consider it necessary to examine whether the authorities should also be held accountable for the non-performance of pulmonary surgery. It finds that the already established failures had the effect of exposing the applicant to prolonged mental and physical suffering amounting to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

58. Accordingly, there has been a violation of Article 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

59. The applicant complained that his pre-trial detention had been unreasonably lengthy and unjustified. This complaint falls to be examined under Article 5 § 3 of the Convection, which reads as follows:

“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.”

A. Submissions by the parties

60. The Government submitted that the applicant’s detention had been extended by the relevant national courts, in full compliance with the domestic regulations and the requirements of Article 5 of the Convention.

61. The applicant maintained his complaints. He argued that his detention had not been necessary. The domestic courts had automatically extended the detention using a standard formula and disregarding the seriousness of his medical condition.

B. The Court’s assessment

1. Admissibility

62. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General principles

63. The applicable general principles have been summarised in Idalov v. Russia [GC] (no. 5826/03, §§ 115-133, 22 May 2012); Zherebin (cited above, §§ 49-54); and Suslov v. Russia (no. 2366/07, §§ 84-86, 29 May 2012).

(b) Application of the general principles to the present case

(i) Period to be taken into consideration

64. The Court observes that in the present case the applicant’s pre-trial detention comprised two periods: (i) from 27 March 2007 (the date of his arrest) until 25 September 2008 (the day of his first conviction); and (ii) from 27 January 2009 (the date of the quashing of the conviction on appeal) until 23 June 2009 (the date of his final conviction). It finds that these consecutive periods should be regarded as a whole, given that between them the applicant continued to be deprived of liberty pending an appeal hearing (see Idalov, cited above, §§ 127-33, and Naimdzhon Yakubov v. Russia, no. 40288/06, § 60, 12 November 2015). Accordingly, the period of the applicant’s detention under examination amounted to one year, ten months and twenty-five days.

(ii) Whether there were relevant and sufficient reasons to justify the detention

65. It is not disputed by the parties that the applicant’s detention was initially warranted by a reasonable suspicion that he had committed a serious offence. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings.

66. When justifying the need to detain the applicant during the criminal proceedings against him, the domestic judicial authorities mainly relied on the risks of his absconding or reoffending (see paragraphs 8, 10, 17, 22 and 26 above).

67. In this connection the Court reiterates that, as regards the existence of such risks, they cannot be gauged solely on the basis of the severity of the sentence faced. The risks must be assessed with reference to a number of other relevant factors, which may either confirm their existence or make them appear so slight that they cannot justify detention pending trial (compare Polonskiy v. Russia, no. 30033/05, § 147, 19 March 2009). In addition to citing the seriousness of the charges as one of the reasons for remanding the applicant in custody, the domestic authorities considered that the applicant was liable to abscond in the light of his having been living in a place of residence other than that which he had registered. However, that risk was not assessed in the light of the applicant’s medical condition, which called for in-patient treatment. As regards the risk of the applicant reoffending, the domestic courts did not refer to any circumstances warranting the detention of the applicant on that ground. The Court thus finds that the existence of the risks was not established.

68. The Court is also unsatisfied with the fact that the judicial decisions authorising the applicant’s detention was silent as to why the alleged risks of the applicant absconding or reoffending could not have been offset by any other means of securing his appearance at the trial.

69. Lastly, the Court points out that the domestic authorities, when ordering the extensions of the applicant’s detention, used identical or similar wording repeatedly. Such an approach may suggest that there was no genuine judicial review of the need for detention at each extension of detention (see Yağcı and Sargın v. Turkey, 8 June 1995, § 50 et seq., Series A no. 319-A). They also extended the applicant’s and his co-defendant’s detention collectively, without looking into the individual circumstances of each of the detainees.

70. Having regard to the above, the Court considers that the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient” to justify the applicant’s detention. In these circumstances it will not be necessary for the Court to examine whether the domestic authorities acted with “special diligence”.

71. There has accordingly been a violation of Article 5 § 3 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

72. The applicant complained that the length of the proceedings had been unreasonable and discriminatory, given the frequent stays in the proceedings on account of his poor health. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention, which, in so far as relevant, reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Submissions by the parties

73. The Government submitted that the delays in the proceedings had been caused by the applicant’s medical condition, which had prevented his participation in the hearings.

74. The applicant argued that the authorities had been responsible for the repeated stays in the proceedings.

B. The Court’s assessment

75. Having regard to the principles set out in Idalov (cited above, § 186); Pedersen and Baadsgaard v. Denmark [GC] (no. 49017/99, § 49, ECHR 2004-XI); and Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II) and all the material before it, the Court notes that the proceedings against the applicant lasted slightly less than two years and five months, which spanned the investigation stage and the examination of the applicant’s case by the courts at two levels of jurisdiction. The Court accepts that the proceedings against the applicant involved a certain degree of complexity. As regards the conduct of the authorities, in particular the trial court’s decision to adjourn hearings, the Court finds that the adjournment was warranted by good reasons, in particular, the applicant’s poor health and his inability to participate at the trial. The hearings in the hospital premises were conducted as soon as the defence lodged an application to that effect (see paragraph 24 above).

76. Making an overall assessment of the circumstances of the case the Court considers that the length of the proceedings was not excessively long.

77. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

78. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

79. The applicant claimed 80,000 euros (EUR) in respect of non‑pecuniary damage.

80. The Government submitted that the finding of a violation would be sufficient to compensate for the non-pecuniary damage suffered.

81. The Court, making its assessment on an equitable basis, considers it reasonable to award EUR 26,000 in respect of non-pecuniary damage, to be paid in full to Ms Vasilyadi, plus any tax that may be chargeable to her on that amount.

B. Costs and expenses

82. The applicant did not claim compensation for costs and expenses. Accordingly, the Court makes no award in this respect.

C. Default interest

83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides that the applicant’s mother, Ms Vasilyadi, has locus standi in the proceedings;

2. Declares the complaints under Articles 3 and 5 § 3 of the Convention admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 3 of the Convention;

4. Holds that there has been a violation of Article 5 § 3 of the Convention;

5. Holds

(a) that the respondent State is to pay to the applicant’s mother, Ms Vasilyadi, within three months, EUR 26,000 (twenty-six thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable to her, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident

 

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