Information Note on the Court’s case-law No. 90
October 2006
Khudobin v. Russia - 59696/00
Judgment 26.10.2006 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Conviction of offence prompted by the police: violation
Article 3
Degrading treatment
Inhuman treatment
Lack of qualified and timely medical assistance to a HIV-positive detainee suffering from epilepsy: violation
Facts: In 1998 an undercover police informant called the applicant and asked him to buy her some drugs. The latter agreed and bought 0.05 grammes of heroin which he paid for with the money she gave him. On his return to the meeting point where he was to hand over the drug, he was apprehended by police officers. The next day he was charged with drug trafficking and detained on remand. His detention was further prolonged on several occasions, without any reasons given by the court. When the applicant was arrested he was suffering from several chronic diseases, including epilepsy, pancreatitis, viral hepatitis B and C, as well as various mental illnesses. He was also HIV-positive. During his detention he contracted several serious diseases including measles, bronchitis and acute pneumonia. He also had several epileptic fits. His request to undergo a thorough medical examination either in the detention facility or by an independent doctor was refused. The applicant was not present at the hearing on the merits. His lawyer asked for an adjournment because several witnesses, including the person who had sold heroin to the applicant, as well as the policemen involved in the operation, failed to appear. The court refused his request and found him guilty of selling heroin. It discontinued the criminal proceedings due to the findings of a psychiatric report which stated that he had committed the crime in a state of insanity. Instead he was ordered to undergo compulsory medical treatment During the trial the defence argued that, contrary to Russian law, the applicant had been incited to commit an offence by the police informant and that a confession had been extracted from the applicant by force while he was in a state of drug intoxication and without having benefited from legal advice.
Law: Article 3 – While in detention, the applicant had epileptic seizures but did not receive qualified and/or timely medical assistance. As to his mental state, he must have known that he risked at any moment a medical emergency with very serious results and that no qualified medical assistance was available. Throughout his detention the authorities failed to monitor his chronic diseases and provide adequate medicinal treatment, which aggravated his health condition and increased his vulnerability to other illnesses, namely repetitive pneumonias. He was also denied the possibility to receive appropriate medical assistance from other sources, as well as to undergo an independent medical examination of his state of health. Moreover, he was HIV-positive and suffered from a serious mental disorder. That increased the risks associated with any illness he suffered during his detention and intensified his strong feeling of insecurity on that account. In sum, this situation amounted to degrading treatment.
Conclusion: violation (unanimously).
Article 6(1) – The applicant had not had a criminal record and the only allegations of his involvement in drug dealing had come from the police informant. Furthermore, he had made no financial gain from the deal. It therefore appeared to the Court that the police operation had not targeted the applicant personally as a well-known drug dealer, but rather any person who would agree to procure heroin for the informant. A clear and foreseeable procedure for authorising investigative measures, as well as their proper supervision, should have been put in place in order to ensure the authorities' good faith and compliance with proper law-enforcement objectives. However, the police operation had been authorised by a simple administrative decision of the body which later carried out the operation, the text of which contained very little information as to the reasons for and purposes of the planned “test buy”. Furthermore, the operation had not been subjected to judicial review or any other independent supervision. In the absence of a comprehensive system of checks accompanying the operation, the role of the subsequent control by the trial court had been crucial. However, the policemen involved in the “test buy” had never been questioned by the court, although the defence had sought to have them heard. The person who had sold the drug to the applicant had not been questioned either. Finally, the Court was particularly struck by the fact that the applicant himself had not been heard on the subject of incitement as he had also been absent from the hearing on the merits. In sum, although the domestic court had had reason to suspect that there was an entrapment, it did not analyse relevant factual and legal elements which would have helped it to distinguish the entrapment from a legitimate form of investigative activity. Moreover, the domestic law should not tolerate the use of evidence obtained as a result of incitement by State agents. It followed that the proceedings, which had led to the conviction of the applicant, had not been “fair”.
Conclusion: violation (unanimously).
Article 41 – EUR 12,000 for non-pecuniary damage.
For further details, see Press Release no. 633.
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This summary by the Registry does not bind the Court.
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