FIFTH SECTION
PARTIAL DECISION
Application no. 13182/04
by Valeriy Anatolyevich KUTEPOV
against Russia
The European Court of Human Rights (Fifth Section), sitting on 14 April 2009 as a Chamber composed of:
Rait Maruste, President,
Karel Jungwiert,
Anatoly Kovler,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 21 January 2004,
Having regard to the factual information submitted by the Government at the request of the Judge Rapporteur pursuant to Rule 49 § 3 (a) of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Valeriy Anatolyevich Kutepov, is a Russian national who was born in 1968. He is currently serving a prison sentence in the Republic of Mordovia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant
On 2 November 2002 the Klin police officers found the dismembered corpse of a man. They later detected blood traces which led to the apartment of the applicant’s mother. In the apartment the policemen found a bloodstained axe and further blood traces. There were three men (the applicant, Mr G. and Mr O.) and two women. G told the policemen that the applicant had asked him to get rid of the dead body of a man with whom the applicant had visited him the day before. The applicant was arrested. On 3 November 2003 he was questioned in the presence of State-appointed counsel Z. It would appear from the case file that Z. represented the applicant throughout the pre-trial investigation stage.
On 6 November 2002 Judge I. of the Klin Court remanded the applicant in custody. The applicant’s detention was extended on several occasions.
On 10 June 2002 the Moscow Regional Court, following adversarial proceedings in the course of which a number of witnesses, including G. and O., gave evidence and forensic expert reports were examined, convicted the applicant of murder and imposed a sentence of sixteen years’ imprisonment. The court found that the applicant had had a quarrel with the victim in the course of which the latter had been suffocated by the applicant. During the proceedings before the first-instance court the applicant was represented by a court-appointed lawyer, K. The applicant’s complaint of ill-treatment was also examined by the court and rejected as unfounded.
The applicant appealed against the judgment. He complained, inter alia, that the court had refused to join submissions by Mr A. and Mr K. to the case materials or to summon Mr Ka. who, according to the court’s findings, had brought G. a note from the applicant in which the latter requested G. to change his submissions.
On 8 October 2003 the Supreme Court upheld the judgment. According to the applicant, he requested that the hearing be adjourned and that legal-aid counsel be appointed, but his request was rejected. With respect to the applicant’s complaints the court found, in particular, that Mr A. and Mr K. had not been eye-witnesses and that their submissions were irrelevant to the case’s outcome. With respect to Mr Ka., the court found that the circumstances of his appearance with the applicant’s note had been confirmed during the trial by witness L.
On 27 October 2003 the applicant was transferred to the correctional colony IK-11 in the Republic of Mordovia to serve his sentence
Requests by the applicant to be transferred to another colony in the Tverskoy Region, closer to his relatives, were rejected.
2. The applicant’s health condition
The applicant was examined upon arrival at the temporary detention unit on 3 November 2002. The examination revealed several bruises and scratches on his body. It also noted that the applicant had not made any complaints about his state of health.
The applicant, however, claimed that at the moment of his arrest he had been brutally beaten by the policemen.
On 10 November 2002 the investigator ordered a forensic medical examination of the applicant. The expert submitted his report on 12 November 2002. He found only a puncture mark and a bruise which could have been the result of an injection.
According to the applicant he had repeatedly complained about pain in his spine and muscle atrophy of his left leg.
On 19 March 2003 the applicant was examined by the neurologist of the Klin Town Hospital and diagnosed with paresis and atrophy of the left leg. It was mentioned that the applicant required an X-ray, however it does not appear that the X-ray was ever conducted.
Upon arrival at the correctional colony on 27 October 2003 the applicant was examined and diagnosed with paresis of his left foot and muscular hypotrophy of the left leg.
On 3 December 2003 the applicant was diagnosed with myelopathy (chronic damage of the spinal medulla, possibly post-traumatic). An X-ray was again recommended, but was not conducted as the equipment was broken.
On 11 December 2003 the same diagnosis was confirmed and the applicant was allowed to use a walking stick.
On 11 February 2004 the applicant was examined by a psychiatrist and diagnosed with post-traumatic encephalopathy.
According to the Government’s submissions[1], the applicant had received treatment for his diseases on a regular basis. The applicant claimed that he had not been properly and promptly diagnosed, and due to unsatisfactory medical assistance he could now only move around with significant difficulty.
3. Other proceedings in respect of the applicant’s claims
On 18 February 2003 the investigator of the Klin Prosecutor’s Office refused to institute criminal proceedings against the police officers for alleged ill-treatment of the applicant on 3 November 2002. Referring to the explanations of the police officers and to the forensic medical examination which revealed no signs of ill-treatment, he found the applicant’s complaint to be unsubstantiated. The applicant was informed of this decision on 22 April 2003.
On 8 July 2004 the Klin Prosecutor’s Office again refused to institute criminal proceedings against the police officers.
The applicant appealed to the Klin Court against the decision of 18 February 2003.
On 26 July 2005 the Klin Court sent a summons for an appeal hearing on 1 August 2005. The correctional colony received the summons on 9 August 2008. It appears that the hearing was postponed, and on the same day the court sent a summons for 12 August 2005. The colony received the latter summons on 25 August 2005.
On 12 August 2005 the Klin Court rejected the applicant’s appeal against the decision of 18 December 2003. The applicant lodged an appeal with the Moscow Regional Court. He also sought leave to appear in person before the appeal court.
On 21 December 2005 the Moscow Regional Court rejected the applicant’s request for leave to appear in person before the court. The court, furthermore, quashed the decision of 12 August 2005 and remitted the case for a fresh examination. It mentioned that the first instance court had failed to properly examine the applicant’s arguments or to decide on the question of his presence at the hearing.
On 3 February 2006 the Klin Court again rejected the applicant’s appeal against the decision of 18 February 2003.
On 23 June 2006 the Moscow Regional Court upheld this decision. The court noted that the decision of 18 February 2003 had been examined during the course of criminal proceedings against the applicant, and that it had been established that there were no grounds to overrule it. Accordingly the court had no grounds on which to dispute the circumstances as set out in the final judgment.
The applicant had also lodged several claims against officials of the General and Regional Prosecutors’ Offices, challenging alleged omissions. He insisted on his personal presence at the hearings. The correctional colony usually received the summons after the scheduled dates of the hearings, and the applicant’s requests for leave to appear in person were rejected by the courts.
B. Relevant domestic law and practice
1. Medical assistance at the penitentiary institutions
Under section 17 of the Conditions of Detention of Suspects and Defendants Act (Закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений»), inmates are entitled to medical assistance. If the health of an inmate deteriorates, he or she must immediately undergo medical examination by the medical employee of the detention facility. Section 24 provides that if an inmate is suffering from a serious illness, the authorities of the detention facility must immediately inform the prosecutor, who may carry out an inquiry into the matter.
Under paragraph 133 of the Decree of the Ministry of Justice of 12 May 2000 on the internal regulations governing pre-trial detention centres (Приказ Минюста РФ от 12 мая 2000 г. N. 148 «Об утверждении Правил внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства юстиции Российской Федерации»), the medical unit of the detention centre should have an inpatient department. If inmates are in need of urgent or specialised medical assistance which cannot be provided in a detention centre, they should be transferred for inpatient treatment to a penitentiary institution or, if necessary, to a public health institution in accordance with the prescribed procedure.
2. Legal assistance at the appeal hearing
(a) The Code of Criminal Procedure
Article 51 of the Code of Criminal Procedure establishes that counsel is to be appointed by the investigator, prosecutor or the court if, inter alia, the accused faces serious charges, carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Counsel is appointed by the investigator, prosecutor or the court if the accused has not retained a lawyer.
Article 373 of the Code provides that an appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, an appeal court can directly examine evidence, including additional material submitted by the parties.
(b) Case-law of the Constitutional Court of the Russian Federation
Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.”
That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages of the proceedings and is mandatory in the situations listed in Article 51. It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he had been ill-treated during his arrest on 3 October 2002. Under the same provision he complains of insufficient medical assistance for his spinal problem.
Under Article 6 § 3 (c) he complains that no legal assistance was provided to him at the initial stage of investigation and during the appeal hearing.
The applicant further relies on Article 5 §§ 1 (c), 2, 3 and 4, Article 6 §§ 1, 2 and 3 (b) and (d), and Article 13, complaining of unlawful pre-trial detention, errors of fact and law committed by the domestic courts, failure to provide him with copies of procedural documents in time, to inform him in time about the appointment of expert witnesses and to summon all relevant witnesses (including the doctors who examined him after the arrest).
The applicant also complains about the authorities’ refusal to institute criminal proceedings against Judge I. who had authorised his pre-trial detention and, who allegedly had not been impartial.
He further complains under Article 6 § 1 of the Convention that the first-instance and appeal hearings of his complaints against the authorities’ decisions not to institute criminal proceedings against the police officers were held in his absence despite the fact that he had sought leave to appear.
He complains, lastly, that his request to be transferred to another colony was rejected.
THE LAW
1. The applicant complained that, while in detention, he had not been provided with necessary and appropriate medical treatment. He invoked Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant complained that he had not been provided with a legal‑aid lawyer during the appeal hearing of 8 October 2003. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal....
3. Everyone charged with a criminal offence has the following minimum rights:
... (c) to defend himself in person or through legal assistance of his own choosing...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. The Court has examined the other complaints submitted by the applicant under Articles 3, 5, 6 and 13 of the Convention. However, having regard to all the material in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning lack of adequate medical assistance throughout his detention and the absence of a legal-aid lawyer at the appeal hearing;
Declares the remainder of the application inadmissible.
Claudia WesterdiekRait Maruste
RegistrarPresident
[1] Information submitted at the request of the judge-rapporteur under Rule 49 § 2 (a) of the Rules of Court.
Full & Egal Universal Law Academy