Communicated on 18 November 2014
FIRST SECTION
Application no. 78774/13
Vladimir Aleksandrovich TOPEKHIN against Russia
lodged on 14 December 2013
STATEMENT OF FACTS
The applicant, Mr Vladimir Aleksandrovich Topekhin, is a Russian national, who was born in 1982 and lives in Moscow. He is represented before the Court by Ms S. Sidorkina, a lawyer practising in Moscow.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Applicant’s medical condition and the Court’s response to his Rule 39 request
(a) Criminal proceedings and the state of the applicant’s health
Criminal proceedings were instituted against the applicant on suspicion of aggravated fraud. In particular, he was suspected of having fraudulently convinced a businessman to hand him over 10,000,000 Russian roubles to place in a bank deposit box for a future sale of equipment. Investigation authorities insisted that the applicant had no intention to return the money or to conclude any contract. The applicant gave a written undertaking not to leave the town.
He was arrested on 16 July 2013 and placed in a temporary detention facility in Moscow.
On 19 October 2013 the applicant suffered the paralysis of the lower half of his body which, allegedly, resulted from a serious spine injury sustained in a traffic accident prior to his arrest.
On 24 October 2013 the applicant was to be transferred to a trial hearing. However, given that the detention facility did not have means to transport a paralysed inmate, the applicant was placed in an ordinary prison van. Having been unable to support his body weight during the trip, the applicant fell and hit his head and back a number of times. He was immediately taken back to the detention facility. The hearing was cancelled.
The applicant’s condition continued deteriorating in the absence of any medical assistance. On 20 November 2013 he was transferred to the medical unit of detention facility no. 1 in Moscow. As follows from a report prepared by a neurologist in the medical unit, the applicant’s condition was grave. The applicant was recommended a number of examinations and tests, including MRI scans of the head and spine. During further examinations performed by an infectious diseases specialist, a surgeon and prison physicians the applicant’s condition continued being assessed as grave. The applicant was catheterised and measures were taken to prevent bedsores. On 25 November 2013 the applicant was diagnosed with right-sided poly-segmented pneumonia of the right lung and right-sided pleuritis. On 2 December 2013 a group of prison doctors examined him and noted that the “clinical picture of the patient is unclear” and that his placement in a specialised, neurological facility was necessary.
Given a further deterioration of his health, on 9 December 2013 the applicant was transferred to prison hospital no. 20 in Moscow. Records from the hospital showed that the applicant had healing bedsores. According to the same records, the applicant’s condition was grave but stable. The applicant was subjected to an expert examination by a medical commission which concluded that he did not suffer from any medical condition precluding his detention.
On 13 December 2013 the applicant was sent to the medical unit in the temporary detention facility. Three days later the head of temporary detention facility issued a report informing of the applicant’s admission to a hospital as he could not receive necessary care in the detention facility. That report was addressed to the Court, following its request for information to the Government (see the explanation below).
On 20 December 2012 the applicant was transferred to hospital no. 20 in Moscow.
In December 2013 and January-February 2014 the applicant was transferred back and forth between various medical prison facilities.
A report drawn up by a medical commission from hospital no. 20 on 31 December 2013 provided that the applicant suffered from myelopathy of the complex genesis, lower pyramidal paraparesis [frail legs], deterioration of the colonic motor activity, and functional defects in the (urinary) bladder emptying system. At the same time, the commission concluded that the applicant could remain in detention and that medical and general assistance could be provided to him by prison medical personnel.
On 13 January 2014 the Tverskoy District Court in Moscow, in a hearing held in the applicant’s detention facility, convicted him of fraud and sentenced him to six years of imprisonment. That conviction was upheld on appeal on 20 February 2014. However, the sentence was reduced to four years of imprisonment. On 28 February 2014 the applicant was sent to a correctional colony. On 7 March 2014 he was admitted to the colony hospital.
(b) Rule 39 request and the Court’s response
On 14 December 2013 the applicant’s lawyer submitted a request to the Court for an indication to the respondent Government under the Rule 39 of the Rules of Court of an interim measure, in particular provision of adequate medical services and general care to the applicant. The request was only supported with a copy of the applicant’s appeal statement concerning a further extension of his detention and a copy of an article from an Internet webpage which had been written by a human rights activist who had visited the detention facility and had seen the applicant. In his appeal statement, the applicant complained that his lower part of the body had been paralysed, that he suffered from severe back pain and headaches, that he did not receive any medical attention, save for some pills and drips that deteriorated his condition even further. The human rights activist described the applicant’s poor health and also noted that he had been transferred to an ordinary cell where other inmates had been extremely unhappy that they had to care for the applicant. The activist also noted that the applicant had been lying on his bunk, completely naked, that he had not been able to take a shower for a long time, that inmates had cleaned him with a wet towel, that he could not move his legs and a left arm and that “a catheter had replaced a lavatory pan for him”. The activist allegedly talked to the head of the facility medical unit who had noted that the applicant’s diagnosis was “unidentifiable”.
On 17 December 2013 the Court decided to ask the Government to submit information on the state of the applicant’s health, the conditions of his detention and the amount of medical aid he currently received. No decision was taken on the Rule 39 request at the time.
In response to the Court’s request, the Government, relying on an opinion by a medical commission, confirmed the applicant’s diagnosis of partial paralysis, but insisted that it did not preclude his further detention on the condition that he received necessary medical assistance and care. They stressed that such assistance was being given to the applicant. They provided the Court with a copy of the applicant’s record showing that the applicant remained under permanent supervision of prison doctors, including a surgeon, a therapist, and a neurologist. He underwent a number of specialised medical tests, including several MRI examinations. The records showed that the applicant was attended to by a doctor or a nurse several times a day.
In response to the Government’s submissions, the applicant’s lawyer described difficulties the applicant had endured during the first months of his detention in the temporary detention facility, such as the absence of proper medical assistance or any general care. She also indicated that following the transfer to the colony hospital on 7 March 2014 the applicant had had no complaints about the quality of the medical assistance or general care in that facility. He only noted that he continued being assisted by inmates in his everyday needs.
Having examined the parties’ submissions, the Court decided to reject the request for interim measures, but it granted priority treatment to the application under Rule 41 of the Rules of Court.
(c) Further developments
On 17 March 2014 the applicant’s lawyer questioned inmate M. who had been detained together with the applicant in the detention facility in Moscow from August to October 2013. She provided the Court with the interview record. Inmate M. stated that from the very first days of his detention the applicant had been writing complaints about his poor health which had rapidly deteriorated leading to his full paralysis. Inmate M. alleged that the applicant had fallen from the upper shelf of the two-tire bunk and after that fall had never been able to get up again. The applicant had not been provided with any medical assistance as the facility lacked necessary specialists or equipment. He had been left lying on his bunk day and night without any assistance from the facility administration. Detainees started complaining to the administration that they had had to care for the applicant, to feed him, to clean him up, etc. Following a month of ongoing complaints the applicant had finally been taken away to the medical unit of the facility.
Another handwritten statement presented by the lawyer was made by the applicant. In that statement he had described the conditions in which he had been transported from the detention facility in Moscow to the one in Kostroma. In particular, he alleged that on 28 February 2014, after his conviction had become final, he had been dressed, placed on a blanket and was carried by two officials, a warder and a nurse. An equipped medical car took him to a railway station in Moscow. He travelled by train to Yaroslavl. While lying on a blanket, he was taken to a prison van, placed on the floor and waited for approximately 20 hours until the prison van collected all inmates. The applicant was taken to a correctional colony in Yaroslavl, but the colony administration refused to take him in view of his condition and he was sent back in a similar way to a train. The applicant was cold, but he was not given a matrass or a blanket to cover up. He was then taken to a colony in Kostroma. He suffered from an excruciating pain in the back and head, but no painkillers were given to him despite his complaints. The applicant submitted that the method of his transport had led to a further deterioration of his health. He had large bleeding bedsores. He could no longer move hands and thus turn his body from one side to another one. The applicant lost ability to change a diaper which he was using instead of a catheter. Inmates assisted him with his everyday needs. In addition to new health problems, such as urinary infections, he also continued suffering from serious pains.
On 3 July 2014 a court accepted a request for the applicant’s early release from the colony administration in Kostroma and the applicant’s lawyer who argued that the applicant was not fit to remain in detention as he could not receive necessary treatment and general care there. The applicant was released on the same day and admitted to a civil hospital.
2. Applicant’s detention on remand
After the applicant’s placement in custody, on 17 July 2013 the Tverskoy District Court of Moscow authorised his detention, having been convinced by the investigator’s arguments that the applicant was liable to abscond, re-offend or obstruct the investigation. In particular, the District Court noted that on 24 January 2013, having issued a decision indicting the applicant, an investigator had been unable to establish his whereabouts. A warrant for his arrest had been issued and a month later the investigation had been stayed as the applicant had not been found. The police had only been able to locate him in July 2013 and had immediately arrested him. The District Court concluded that given the gravity of the charges against him and his previous attempt to abscond, there were valid reasons to assume that detention was the only measure of restraint negating the risks of his re-offending or absconding.
On 19 August 2013 the Moscow City Court upheld that decision on appeal. The City Court dismissed the applicant’s arguments that he had not absconded the investigation and that his health precluded his detention as he needed specific medical care, absent in the detention facility.
A further extension of the applicant’s detention was authorised by the Tverskoy District Court on 13 September 2013 in view of the gravity of the charges against him, lack of the permanent employment or the source of income, the fact that the applicant had not lived at the place of his registered residence at the time of his arrest, and that he had absconded the investigation. The court again dismissed the lawyer’s argument of the applicant’s fragile health.
That detention order was upheld on appeal by the Moscow City Court on 13 November 2013. The City Court fully endorsed the District Court’s reasoning and noted that there was no objective evidence confirming that the state of the applicant’s health prevented his stay in a detention facility. It referred to the information provided by the facility administration according to which the applicant received necessary medical care in detention and could be transported to the hearings.
On the following day the District Court, in a wording similar to the one in the previous detention orders, extended the applicant’s detention until 30 March 2014.
Further attempts by the applicant’s lawyer to obtain his release on health grounds were futile. In particular, on 13 January 2014 the Tverskoy District Court, having again listed the grounds which had served as the basis for the extension of the applicant’s detention on previous occasions and having referred to the expert report of 31 December 2013 (cited above), found no reasons to release the applicant. On the same day the applicant was convicted and sentenced to imprisonment.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention that he had not received adequate medical care, save for in prison hospital no. 20, as well as that he had been left without proper assistance with his basic needs in detention.
2. In addition, under Article 3 of the Convention the applicant complained about the conditions of his transport from detention facility no. 2 in Moscow to the correctional colony in Kostroma.
3. The applicant also complained under Article 5 §§ 3 and 4 of the Convention that his lengthy detention on remand had lacked any grounds and that his appeals against the detention orders of 17 July and 13 September 2013 had not been examined speedily.
QUESTIONS TO THE PARTIES
1. Regard being had to the applicant’s state of health and, in particular, his suffering from severe movement impairment, were the conditions of the applicant’s detention in various detention facilities where he was kept following his arrest, compatible with Article 3 of the Convention? In particular,
(a) were any specific measures taken by the penitentiary authorities to accommodate the applicant, a paralysed detainee, and if so, what steps were taken, when and by whom;
(b) who provided the applicant with assistance with his everyday basic needs (eating, cleaning up, urinating, etc.) and general medical needs, such as dealing with bedsores?
The Government are asked to answer these questions in respect of every facility where the applicant had stayed.
2. Taking into account the applicant’s medical history, did the authorities of the respondent State meet their obligation to ensure that that applicant’s health and well-being were adequately secured by, among other things, providing him with the requisite medical assistance (see McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003‑V)? In this respect, the Government are asked to produce an opinion by medical experts independent from the prison system answering the following questions:
(a) was the treatment the applicant received during his detention thorough, comprehensive and adequate for his condition;
(b) was his state of health compatible with the conditions of his detention in ordinary detention facilities?
3. The Government are requested to produce a typed copy of the applicant’s complete medical record drawn up after his arrest until his release, and a copy of the court’s decision of 3 July 2014 authorising the applicant’s release.
4. Were the conditions of the applicant’s transport from detention facility no. 2 in Moscow to the correctional colony in Kostroma compatible with Article 3 of the Convention?
5. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
6. Did the length of the proceedings in the present case, by which the applicant sought to challenge the detention orders of 17 July and 13 September 2013, comply with the “speediness” requirement of Article 5 § 4 of the Convention?
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