FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 3038/03
by Viktor Aleksandrovich PYLNEV
against Russia
The European Court of Human Rights (First Section), sitting on 9 February 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 6 December 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Viktor Aleksandrovich Pylnev, is a Russian national who was born in 1952 and lives in Voronezh. He is represented before the Court by Ms O. Preobrazhenskaya, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal investigation
On 5 April 1999 the Kaluga Regional Deputy Prosecutor opened a criminal investigation in respect of the applicant, who was at the time a member of the regional legislature, on suspicion of tax evasion.
On 15 September 1999 the applicant was questioned by the investigator as a suspect and signed an undertaking not to leave town pending the investigation. At the time he resided in Maloyaroslavets in the Kaluga Region.
On 20 September 1999 the applicant was indicted on the charge of tax evasion.
On 21 September 1999 the investigator authorised the applicant's detention pending the investigation. In particular, the investigator noted:
“Having regard to the gravity of the charge and the fact that [the applicant] does not have permanent employment and may abscond or put pressure on witnesses and conspire with other co-accused to obstruct the course of justice, [the investigator] decides to ... place [him] in custody...”
It appears that the applicant left for Moscow on 22 September 1999. He did not notify the investigator of his departure. On the following day the applicant's name was put on the wanted persons' list. From 6 to 23 October 1999 the applicant underwent in-patient treatment in a cardiology centre in Ivanovo. From 26 October to 25 November 1999 the applicant was in Moscow, where he fell ill and received unspecified outpatient treatment. Upon his return to Maloyaroslavets he was arrested in his flat on 28 November 1999 and placed in custody. His lawyer appealed, asking the court to release the applicant.
On 10 December 1999 the Kaluga District Court of the Kaluga Region confirmed the lawfulness of the applicant's arrest, noting that:
“[The applicant] is charged with a serious offence which carries a custodial sentence of up to five years. Furthermore, [the applicant] earlier absconded and his name was put on the wanted persons' list”.
On 8 February 2000 the applicant was charged with fraud and abuse of power. On 11 and 14 February 2000 the charges were dropped.
On 28 February 2000 the applicant was indicted on charges of securities fraud, corrupt business practices and breach of trust.
On 13 June 2000 the applicant was released on an undertaking not to leave town.
On 30 June 2000 the applicant consulted a psychiatric hospital in Kaluga and agreed to undergo in-patient treatment there. He was diagnosed with an “organic disorder of mixed origin with cerebro-asthenic and psychopathic-like personality change” (органическое расстройство смешанного генеза с церебрастеническими, психопатоподобными изменениями личности). He was released from hospital on 31 July 2000.
From 20 October to 2 November 2000 the applicant underwent treatment in the same hospital. It appears that the applicant failed to inform the authorities of his departure from Maloyaroslavets and on 6 December 2000 the regional prosecutor revoked the applicant's undertaking not to leave town and ordered his detention pending investigation and trial. The prosecutor noted that the applicant, who “remained impenitent”, might obstruct the course of justice or abscond. On the same day the prosecutor transferred the applicant's case file to the Maloyaroslavets District Court of the Kaluga Region. On 7 December 2000 the applicant was placed in remand prison no. IZ-40/1 in Kaluga.
2. First trial
On 3 January 2001 the Maloyaroslavets District Court of the Kaluga Region scheduled the opening of the trial for 12 January 2001. The applicant was to remain in custody.
On 12 January 2001 the District Court dismissed an application by the applicant for release. On 9 February 2001 the Kaluga Regional Court upheld the decision of 12 January 2001 on appeal. The court noted that the applicant was charged with serious offences, which fact alone justified his pre-trial detention.
On 31 January 2001 forensic psychiatrists examined the applicant and found him fit to stand trial.
On 7 March 2001 the District Court ordered the applicant to undergo a comprehensive psychiatric examination. The applicant was transferred to remand prison no. 77/2 in Moscow on 19 May 2001. On 27 June 2001 he was placed in a forensic psychiatric hospital. On 24 July 2001 the medical panel established that the applicant did not suffer from any chronic mental disorder and ruled that he was fit to stand trial. On 9 August 2001 the applicant was transferred back to remand prison no. IZ-40/1 in Kaluga.
On 28 August 2001 the District Court found the applicant guilty as charged and sentenced him to seven years' imprisonment.
On 26 October 2001 the Kaluga Regional Court quashed the judgment of 28 August 2001 on appeal and referred the matter back for fresh consideration.
3. Second trial
On 16 November 2001 the applicant was released on an undertaking not to leave town. On an unspecified date he left for Obninsk, in the Kaluga Region, where he underwent in-patient treatment for ischaemia and an organic disorder of mixed origin with cerebro-asthenic and psychopathic-like personality change in hospital no. 8 from 23 November 2001 to 23 January 2002.
On 24 December 2001 the hospital informed the District Court that the applicant's condition did not entail an impediment to his participation in the trial.
On 3 and 4 January 2002 the applicant failed to attend the hearings. According to the applicant, on 9 January 2002 the District Court had to adjourn the hearing owing to his poor health. In response to the applicant's complaints about his health, the court summoned an emergency response doctor, who examined the applicant and gave him pain relief.
On 14 January 2002 the District Court granted a request by the applicant to adjourn the hearing until 21 January to allow him to hire a new lawyer to represent him. Later that day the applicant consulted a doctor.
On 16 January 2002 the applicant was examined by a medical panel which recommended that he should avoid stressful situations for ten days.
On 21, 23 and 25 January 2002 the District Court held hearings. It dismissed the applicant's request to stay the proceedings on account of his poor health condition. The court relied on the opinion of the doctors from hospital no. 8, where the applicant was undergoing in-patient treatment at the time. According to the applicant, he did not feel well after the hearings and had to seek medical assistance.
On 23 January 2002 hospital no. 8 discharged the applicant, noting that his health condition was satisfactory.
On 29 January 2002 the applicant allegedly lost his eyesight temporarily and asked the court to adjourn the hearing. The court called for an ambulance, which took the applicant to a hospital in Maloyaroslavets, where he stayed until 18 February 2002. He was diagnosed with cervical osteochondrosis and hernia of intervertebral discs, myelopathy, astheno-neurotic syndrome, ischaemia, angina pectoris and hypertension and underwent relevant treatment. Then he was transferred to another hospital in Kaluga on 18 February 2002. The court hearings on 21 and 26 February 2002 were adjourned. It appears that the applicant did not obtain the District Court's authorisation for his transfer to Kaluga.
On 7 March 2002 the Kaluga Regional Department of Health and Pharmaceuticals recommended that the applicant be examined by neurology specialists in Moscow. The applicant's medical file was forwarded to Moscow City Hospital no. 19 affiliated to the Burdenko Neurosurgery Institute.
On 18 March 2002 the applicant failed to attend the hearing and the judge ordered his detention pending trial. The court noted that the applicant had violated his undertaking not to leave town. The applicant was taken into custody in hospital and transferred to a temporary detention unit in Maloyaroslavets on 19 March 2002. He was held there until 21 March 2002. Every day the administration called for emergency response doctors to attend to the applicant. On 21 March 2002, upon the neurologist's recommendation, the applicant was transferred to a hospital in Maloyaroslavets. According to the applicant, he lost sensitivity in his legs and was constantly in pain in the spinal area. He felt giddy and had headaches and heart pain. His limbs were swollen. His speech was slow and he suffered from memory loss.
On 19 March 2002 the medical professionals at the Burdenko Neurosurgery Institute examined the applicant's medical file and recommended that he receive spinal surgery “shortly”.
On 26 March 2002 the applicant started wearing a neck brace. On the same day the policemen removed him from hospital and took him to the temporary detention unit in Maloyaroslavets. On 27 March 2002 the District Court adjourned the hearing in response to a complaint by the applicant about his medical condition. The applicant was examined by a general practitioner, who testified in court, recommending a comprehensive medical examination. On 28 March 2002 the District Court granted the prosecutor's request and commissioned an expert panel to examine the applicant in order to ascertain whether his health condition permitted him to participate in the proceedings.
It appears that on 28 March 2002 the applicant arranged for a meeting with a group of medical professionals from Kaluga. However, the judge in charge of his case refused to authorise their access to the temporary detention unit where the applicant was being held at the time.
According to the applicant's medical file, submitted by the Government, on 29 March 2002 he was transferred to the medical unit at remand prison no. IZ-40/1 in Kaluga.
On 10 April 2002 the applicant was examined by a medical panel comprising specialists in neurosurgery, cardiology, neuropathology, neurology and general therapy. The experts concluded that the applicant could participate in the proceedings. They noted that he could move his feet and toes, but he refused to flex the knees, alleging that such movements caused extra pain in the spinal cord. The applicant was able to sit up and turn from side to side. They summed up their findings as follows:
“[The applicant] suffers from cervical osteochondrosis and hernia of intervertebral disks, myelopathy, astheno-neurotic syndrome, ischaemia, angina pectoris and hypertension. The applicant's current condition allows him to participate in the criminal proceedings. [The Burdenko Scientific Research Institute, Department of Neurosurgery] and town hospital no. 19 ... recommended that [the applicant] undergo in-patient treatment and surgery shortly. The in-patient treatment and surgery in question have been recommended on account of the deterioration of the applicant's health.”
On the same day Colonel K. of the Kaluga Regional Department for the Execution of Sentences asked the Main Department for the Execution of Sentences for the applicant to be transferred to the Burdenko Neurosurgery Institute in Moscow. In particular, he noted that the applicant's condition required specialist medical intervention, which was unavailable at the remand prison.
On 15 April 2002 the District Court resumed the proceedings. Prior to the hearing, the applicant, who complained of a headache, heart pain, dizziness and shortness of breath, was examined by a general practitioner at the courthouse. The doctor noted that the applicant was suffering from an attack of angina pectoris and prescribed pain-relieving medication. The hearing was adjourned.
The District Court subsequently held hearings on 16 to 19, 22 and 24 April 2002. Prior to each hearing, doctors examined the applicant and found him fit to participate in the proceedings. They noted, inter alia, that the applicant was lucid and responded appropriately to the questions asked.
During the trial the applicant pleaded not guilty and chose not to testify.
On 27 April 2002 the Maloyaroslavets District Court acquitted the applicant of breach of trust, found him guilty of securities fraud and tax evasion and sentenced him to five and a half years' imprisonment. The court also granted civil claims brought against the applicant with regard to the securities fraud.
On 18 May 2002 the Main Department for the Execution of Sentences authorised the applicant's transfer to hospital no. 19, affiliated to the Burdenko Neurosurgery Institute.
On 30 May 2002 the applicant was examined by a neurosurgeon and a neurologist, who confirmed the earlier diagnosis and recommended that the applicant be transferred to the Burdenko Neurosurgery Institute to determine the date of the surgery.
On 25 June 2002 the Kaluga Regional Court upheld the applicant's conviction in substance on appeal.
From 3 to 25 July 2002 the applicant underwent treatment at a regional hospital. On an unspecified date he was transferred to hospital no. 19 in Moscow. On 7 August 2002 the applicant had surgery. He was discharged from hospital on 9 September 2002.
4. Commutation of the applicant's sentence
On 12 February 2004 the Lyublinskiy District Court of Moscow reclassified the applicant's conviction to bring it into compliance with the amendments of the Russian Criminal Code. The term of the sentence remained unchanged. On 1 April 2004 the Moscow City Court upheld the decision of 12 February 2004 on appeal.
5. Search of the applicant's flat and seizure of money
On 26 June 1999 the police conducted a search of the applicant's flat and seized 25,000 United States dollars.
The applicant lodged a complaint with the Kaluga District Court, arguing that the money should be transferred to the tax authorities as payment of his tax arrears. On 18 August 2000 the court dismissed the applicant's complaint. On 2 October 2000 the Kaluga Regional Court upheld the judgment of 18 August 2000 on appeal.
It appears that the money in question was admitted in evidence and deposited with the tax authorities pending criminal proceedings against the applicant.
On 1 August 2002, in response to an inquiry initiated by the applicant's wife, the District Court ruled that the money seized in his flat and deposited with the tax authorities would be used to repay the pecuniary damage caused by his crimes. On 4 September 2002 the District Court refused to reinstate the time-limits for the applicant's appeal. On 1 November 2002 the Kaluga Regional Court quashed the decision of 4 September 2002 and discontinued the proceedings, noting that even though the applicant's wife was his representative, she was not authorised as a matter of law to initiate the inquiry.
On 21 November 2002 the bailiff seized the money in the context of enforcement proceedings against the applicant.
On 2 March 2004 the Maloyaroslavets District Court of the Kaluga Region dismissed the applicant's complaint about the seizure of his money by the bailiff. On 12 April 2004 the Kaluga Regional Court upheld the judgment of 2 March 2004 on appeal.
6. Conditions of detention
(a) Detention before 16 November 2001
The applicant submitted that from 28 to 30 November 1999 he was detained in an overcrowded cell at the temporary detention unit in Obninsk.
From 30 November 1999 to 13 June 2000, from 7 December 2000 to 19 May 2001 and from 10 August to 16 November 2001 the applicant was detained in remand prison no. IZ-40/1 in Kaluga. According to the applicant, all the cells in the prison were overcrowded. The number of beds was insufficient and the inmates had to take turns to sleep.
From 19 May to 9 August 2001 the applicant was held in remand prison no. 77/2 in Moscow. According to the applicant, during the period in question he was detained in severely overcrowded cells. The cells were infested with cockroaches. The windows were covered with metal shutters which prevented access to fresh air. The light, which was constantly on, was not sufficient to permit reading. His relatives were not allowed to send him books or periodicals. Nor were they available from the prison library. The food was of low quality. On frequent occasions the inmates received no more than two meals per day. The daily walk lasted no longer than half an hour.
(b) Detention in the temporary detention facility in Maloyaroslavets and transfor to the courthouse in March 2002
From 19 to 21 March and from 26 to 31 March 2002 the applicant was detained in the temporary detention facility in Maloyaroslavets. The applicant was kept in a basement in a cell without windows or the possibility of access to fresh air. He was not provided with bed sheets or toiletries. There was no toilet in the cell.
According to the applicant, he was unable to walk at the time. The guards did not have stretchers and had to carry him from the van to the courtroom holding him by the arms and legs.
(c) Detention in remand prison no. IZ-40/1 in Kaluga from 1 April to 3 July 2002
From 1 April to 3 July 2002 the applicant was detained in the medical unit of remand prison no. IZ-40/1 in Kaluga. According to the Government, the applicant was detained in “ward no. 6”, which measured 24.9 square metres. It had eight sleeping places and six inmates, including the applicant, were detained there.
According to the applicant, he had an individual sleeping place. He provided no further details as to the conditions of his detention during the period in question.
B. Relevant Council of Europe documents
The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital.
...
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
...
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”
COMPLAINTS
1. The applicant alleged that he had been subjected to psychological pressure on 28 November 1999, that is, on the day of his initial arrest, and during questioning from 28 November 1999 to 13 June 2000. He further complained about the conditions of his detention and the lack of adequate medical assistance in detention. He relied on Article 3 of the Convention.
2. The applicant complained under Article 5 of the Convention that his name had been unlawfully put on the wanted persons' list; that his arrest and detention pending investigation and trial had been unlawful; that he had not been advised of his rights after his initial arrest on 28 November 1999; and that he had been detained pending investigation and trial in the absence of relevant and sufficient reasons.
3. The applicant complained under Article 6 § 1 of the Convention that he had been unable to participate effectively in the trial because of his medical condition.
4. The applicant complained under Article 6 § 3 (b) of the Convention that he had been unable to prepare his defence. In particular, he alleged that he had studied the case file while being handcuffed to a desk.
5. Referring to Article 6 §§ 1-3 of the Convention, the applicant complained of numerous irregularities in the trial. In particular, he alleged that he had been unable to obtain copies of certain documents from the case file; that he had been transferred frequently from one cell to another, which had made his preparation for the trial very difficult, if not impossible; that the judge who had delivered the judgment convicting him on 28 August 2001 had been biased; that during the trial he had been unable to meet his relatives, who had also acted as his representatives; that all his requests had been dismissed by the court and that the court had not ensured the attendance of witnesses; that he had been found guilty of crimes he had not committed; and that his sentence had not been reduced, in contravention of the amendments to the Russian Criminal Code. He also complained about the coverage of the trial by the Russian media.
6. The applicant complained under Article 8 of the Convention about the search of his flat on 26 July 1999.
7. The applicant complained under Article 9 of the Convention that he had been denied meetings with a priest.
8. The applicant complained under Article 13 of the Convention that he had not had any effective remedies to protect his rights.
9. The applicant complained under Article 1 of Protocol No. 1 that his money had been seized during the search of his flat on 26 July 1999. He further alleged that the court decision to use the money to enforce the judgment granting the civil claims against him had been unlawful.
10. The applicant complained under Article 2 of Protocol No. 1 that he could not use the money seized by the authorities to pay for the education of his children.
11. The applicant complained under Article 2 of Protocol No. 4 about his arrests.
12. The applicant complained under Article 2 of Protocol No. 7 that the trial judge had failed to give reasons when dismissing his requests.
13. The applicant complained under Article 4 of Protocol No. 7 that he had repeatedly been taken into custody pending trial.
THE LAW
1. The applicant complained that law-enforcement officers had exerted undue psychological pressure on him during his first arrest on 28 November 1999. He further alleged that from 28 November 1999 to 13 June 2000 he had often been questioned while not feeling well. He had been detained in appalling conditions pending investigation and trial. He complained that the medical assistance he had received while in detention from 19 March to 3 July 2002 had been inadequate. He considered such treatment to be inhuman and degrading within the meaning of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Arrest and questioning
The Court notes that the applicant has never brought his grievances in respect of the treatment he was allegedly subjected to during his initial arrest on 28 November 1999 and his repeated questioning between 28 November 1999 and 13 June 2000 to the attention of any domestic authorities and therefore has not afforded them an opportunity to examine them and, if appropriate, to offer redress.
It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Conditions of the applicant's detention
(a) The parties' submissions
The Government claimed that the conditions of the applicant's detention in remand prison no. IZ-40/1 in Kaluga were in compliance with the standards prescribed by Article 3 of the Convention. They denied that the applicant had ever been detained in overcrowded cells. At all times he had been provided with an individual sleeping place and bed linen. They relied on the certificates issued by the remand prison administration in 2007. As regards the applicant's detention, from 1 April to 3 July 2002 he had been held in the medical unit of remand prison no. IZ-40/1 in Kaluga in “ward no. 6”, which measured 24.9 square metres. It had eight sleeping places and six inmates, including the applicant, had been detained there. As regards the temporary detention unit in Maloyaroslavets, the Government conceded that the conditions of the applicant's detention had not been in full compliance with Article 3. There had been no bathrooms or windows in the cells. Nor had there been shower facilities or a walking yard.
The applicant maintained his complaints. He described in great detail the conditions of his detention in respect of the period preceding 1 April 2002. As regards his detention from 1 April to 3 July 2002, he confined his account to mentioning that he had been provided with an individual bed.
(b) The Court's assessment
In so far as the applicant's complaint concerns the events that took place before 1 April 2002, including his detention from 28 to 30 November 1999, from 7 December 2000 to 16 November 2001, and from 26 to 31 March 2002, the Court reiterates that it may only deal with the matter within a period of six months from the date on which the final decision was taken or the event occurred. The applicant lodged his application on 6 December 2002. It follows that these complaints have been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As regards the applicant's detention from 1 April to 3 July 2002, the Court notes that the applicant did not dispute the Government's submissions that he had been detained in a ward measuring 24.9 square metres together with five other inmates and had, accordingly, been afforded approximately 4.14 square metres of personal space. He also submitted that, unlike previously, he had been provided with an individual sleeping place during the period in question. Lastly, the Court notes that the applicant did not provide any other details pertaining to the description of the ward to substantiate his complaint.
Having regard to the above, the Court is unable to conclude that the conditions of the applicant's detention from 1 April to 3 July 2002 attained the minimum level of severity necessary to come within the scope of Article 3 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Alleged lack of medical assistance in detention
(a) The parties' submissions
The Government contested the applicant's allegations. They noted that during the period in question, notably from 18 March to 3 July 2002, the applicant had received adequate medical assistance. He had been examined by a neurologist on 21 March 2002 and later that day had been admitted to hospital, where he had undergone the required treatment until 26 March 2002. After his release from hospital, the applicant had received medical assistance at the temporary detention unit in Maloyaroslavets and remand prison no. IZ-40/1 in Kaluga. On the days of the trial, he had been under constant medical supervision. The Government provided a copy of the applicant's medical file to support their position that the medical assistance provided to the applicant had been adequate.
The applicant maintained his complaint. He pointed out that the medical professionals at the temporary detention facility in Maloyaroslavets had been unable to provide him with adequate medical assistance. During the time of his detention there, the administration had had to summon emergency response doctors to attend to his medical needs. On 28 March 2002 the authorities had prevented a group of medical specialists from meeting him. He further submitted that he had required urgent surgery which could not have been performed at the hospital of remand prison no. IZ-40/1. The surgery could have been carried out only by a specialised hospital in Moscow. However, the authorities had refused to transfer him to the medical facility in question. As regards the medical assistance he had received on the days of the hearings in court, it had been provided by general practitioners who had not been fully qualified to attend to the spinal cord problems he had been suffering from.
(b) The Court's assessment
The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see Labita v. Italy [GC], no. 26772/95 § 119, ECHR 2000-IV).
The Court further reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).
In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with the detention (see, mutatis mutandis, Tyrer v. the United Kingdom, 25 April 1978, § 30, Series A no. 26, and Soering v. the United Kingdom, 7 July 1989, § 100, Series A no. 161).
In most cases concerning the detention of ill persons the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this connection that even if Article 3 does not entitle a detainee to be released “on compassionate grounds”, it always requires that the health and well-being of detainees are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; see also Hurtado v. Switzerland, 28 January 1994, § 79, Series A no. 280-A, opinion of the Commission; Kalashnikov v. Russia, no. 47095/99, §§ 95 and 100, ECHR 2002-VI; and Khudobin v. Russia (no. 59696/00, § 96, ECHR 2006-XII).
Turning to the circumstances of the present case, the Court observes that the applicant did not allege that his detention was incompatible with his medical condition. Nor did he dispute that he had been under constant medical supervision. The thrust of the applicant's complaint is rather that the recommended spinal surgery was delayed to an extent incompatible with the standards set out in Article 3 of the Convention and the medical assistance he received while awaiting the authorities' approval of his transfer to a specialised hospital was not sufficient.
Having examined the medical documentation submitted by the parties, the Court, however, finds the applicant's allegations unsubstantiated.
As regards the applicant's allegation that his spinal surgery had been unduly delayed, the Court notes that the applicant received the surgery on 7 August 2002, approximately four and a half months after it had been recommended by the specialists of the Burdenko Neurosurgery Institute on 19 March 2002. The doctors, who reviewed only the applicant's medical file, concluded that he should receive the surgery “shortly”. No further specification was made. The Court further observes that on 10 April 2002 the medical panel confirmed the earlier recommendation of the Burdenko Neurosurgery Institute. The panel, however, found it possible that the surgery could be delayed pending trial.
The Court also notes that the authorities took further steps to monitor the applicant's condition, given its precariousness. He was examined by general practitioners on a daily basis. The Court discerns nothing in the material in its possession to suggest that the medical professionals who monitored the applicant's condition at the temporary detention unit, at the remand prison and in court during the trial lacked the qualifications to do so. His diagnosis had been known and he received pain-relieving medication. In such a context, the court's refusal on one occasion to authorise an additional meeting between the applicant and the doctors of his own choosing cannot be interpreted as detrimental to his condition either.
The Court does not lose sight of the fact that on two occasions the applicant was removed from hospital and placed in a temporary detention unit which did not have adequate medical facilities. He spent first two and then five days there. Nevertheless, the Court cannot subscribe to the applicant's opinion that such treatment attained the minimum level of severity to raise an issue under Article 3 of the Convention. Even though the temporary detention unit did not have medical facilities of its own, its administration took the necessary steps to ensure that the applicant received medical care. The detention unit called upon the services of the emergency response doctors and a neurologist to attend to the applicant's needs.
Accordingly, the Court concludes that the medical supervision available to the applicant was satisfactory overall. The irregularities in the medical assistance provided to him were not such as to render it incompatible with the standards set out in Article 3 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant claimed that his arrest and pre-trial detention had been contrary to Article 5 of the Convention in several respects: his name had been unlawfully put on the federal wanted list, his arrest and detention pending investigation and trial had been unlawful, he had not been advised of his rights after his first arrest on 28 November 1999, and he had been detained pending investigation and trial in the absence of relevant and sufficient reasons.
The Court reiterates that it may only deal with the matter within a period of six months from the date on which the final decision was taken or the event occurred. It observes that the applicant's complaints concern the period of his pre-trial detention, which ended on 27 April 2002 with his conviction by the District Court at first instance. The Court further observes that the applicant lodged his application only on 6 December 2002, seven months and ten days after the date on which the judgment convicting him was delivered and his pre-trial detention ended.
It follows that these complaints have been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3. The applicant complained under Article 6 § 1 of the Convention that he could not participate effectively in the criminal proceedings against him owing to his medical condition. The Court considers that the complaint falls to be examined under Article 6 §§ 1 and 3 (c), which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person...”
(a) The parties' submissions
The Government asserted that the domestic courts had duly ensured the applicant's effective participation in the criminal proceedings. In their decision to proceed with the trial, they had relied not only on their discretion, but also on professional medical opinion. The applicant had been under constant medical supervision and the hearing of the case had been adjourned on the days when he had been feeling unwell. The trial court had commissioned a comprehensive medical examination of the applicant. The panel had found the applicant fit to participate in the criminal proceedings. Besides, the court had ensured the constant presence of doctors in the courtroom on the days of the hearings in April 2002. Prior to each hearing, the doctors had examined the applicant to make sure that he could adequately follow the proceedings.
The applicant submitted that he had had to attend the court hearing even though his lower body had been paralysed. Besides, he had had to wear a neck brace and had had to lie down during the hearing to avoid pain in the shoulders and headaches caused by the brace. Being general practitioners, the doctors summoned by the court to examine him had not been fully qualified to determine whether his condition permitted his effective participation in the trial. The fact that the doctors had been constantly present in the courtroom showed that his health had been deteriorating. On 28 March 2002 a group of specialists had arrived at the courthouse to examine the applicant, but had been denied access to him. Instead, he had been examined by a general practitioner who had been on the police payroll. The doctors had prescribed pain-relieving medication to the applicant. He had been severely sedated and had not been able to follow the proceedings adequately. Accordingly, even though the applicant had been represented by counsel, his participation in the proceedings had not been effective.
(b) The Court's assessment
The Court reiterates that the right of an accused under Article 6 to effective participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to hear and follow the proceedings. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained, in particular, in sub-paragraph (c) of paragraph 3 of Article 6 – “to defend himself in person” (see, among others, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 78, Series A no. 146; Stanford v. the United Kingdom, 23 February 1994, § 26, Series A no. 282-A; and S.C. v. the United Kingdom, no. 60958/00, § 28, ECHR 2004-IV). “Effective participation” in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. The defendant should be able, inter alia, to explain to his own lawyer his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence (see, for example, Stanford, cited above, § 30; V. v. the United Kingdom [GC], no. 24888/94, §§ 85, 89, 90, ECHR 1999-IX; and S.C. v. the United Kingdom, cited above, § 29). The circumstances of the case may require the Contracting States to take positive measures in order to enable the applicant to participate effectively in the proceedings (compare Vaudelle v. France, no. 35683/97, §§ 48-49 and §§ 55-56, ECHR 2001-I, and V. v. the United Kingdom, cited above, § 86).
Turning to the circumstances of the present case, the Court notes that it was made known to the trial court that the applicant suffered from spinal disorders. No charge was made that he was malingering. Furthermore, having regard to the fact that in 2002 several adjournments of the proceedings were necessary because of the applicant's poor health, the Court accepts that his situation required the trial court to take it seriously and to make reasonable arrangements to determine whether he could participate in the proceedings effectively.
Having examined the material in its possession, the Court is satisfied that the trial court fulfilled the above requirements in an adequate manner.
On 28 March 2002 the trial court commissioned a professional panel to establish whether the applicant was prevented from taking part in the proceedings on medical grounds. Noting that the applicant had been recommended surgery, the panel nevertheless found him fit to continue to stand trial. In line with the medical panel's findings, the trial court sought the opinion of a medical professional before each hearing in April 2002, when it actually started the consideration of the merits of the case. The Court does not lose sight of the fact that the doctors who examined the applicant found him lucid and coherent. The Court also notes that the applicant did not proffer any evidence to support his contention that the doctors who had examined him in court were incompetent.
The Court accepts that the applicant might have been somewhat distracted by pain and other symptoms associated with his condition. However, this fact alone is insufficient to conclude that he was unfit to continue to stand trial.
Lastly, the Court observes that, in the present case, there is no indication that, because of his condition, the applicant could not understand the nature of the proceedings. Nor are the applicant's allegations that he had been unable to assist his defence counsel supported by medical documentation or records of the trial. While, as the records show, he chose not to testify, there is no indication that he was not capable of doing it had he so desired.
The Court considers that in such circumstances, where the applicant suffered from spinal disorders but was coherent and rational and did not require serious medical intervention, the trial court was not obliged to suspend the criminal proceedings. In the course of the trial, the court reasonably accommodated the applicant's needs. He was attended by doctors and prescribed pain-relieving medication where necessary.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant complained that he had been kept handcuffed to a desk all the time he had studied the case file. He relied on Article 6 § 3 (b) of the Convention, which reads as follows:
“3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence.”
The Government submitted that the applicant had not supported his allegation with any evidence. Nor had he or his lawyer raised this complaint in the course of the criminal proceedings against him.
The applicant maintained his complaint. He further claimed that he had complained about the situation both orally and in writing to the authorities, including the prosecutor's office, the tax police and the investigators, but all his complaints had been to no avail. However, he did not submit copies of the complaints or specify the dates when he had lodged them.
Having regard to the above, the Court discerns nothing in the material in its possession to substantiate the applicant's allegations that he had indeed raised the issue before the domestic authorities. In such circumstances the Court accepts the Government's assertion that the applicant has never complained to any domestic authorities about having been handcuffed while studying the case file and therefore has not afforded them an opportunity to address the issue and, if appropriate, to remedy the situation. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
5. Lastly, the applicant complained about further irregularities in the investigation and trial and the seizure of his money. He referred to Articles 6, 8, 9, and 13 of the Convention, Articles 1 and 2 of Protocol No. 1, Article 2 of Protocol No. 4 and Articles 2 and 4 of Protocol No. 7.
However, having regard to all the material in its possession, the Court finds that the complaints 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 discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy