- It appears from the documents submitted by the applicant that immediately after his placement in detention in May 2012 his antiretroviral therapy was interrupted. According to the applicant, it was not until August 2012 that the therapy was restarted. The Government did not refer to that fact in their observations, and the information in the applicant’s medical file provided by them is not sufficient to refute the applicant’s allegations, as it contains no entries between 16 May 2012 and 26 June 2012. In these circumstances, the evidence adduced by the applicant enables the Court to conclude that the authorities failed to ensure the continuity of his antiretroviral treatment.
- The Court reiterates that ensuring continuity of care between the community and prison, as well as within the prison system, is a fundamental component of successful treatment. Supporting adherence to treatment is essential for preserving the efficacy of antiretroviral therapy, as pointed out in the guidelines of the World Health Organisation in force at the relevant time (see paragraph 61 above). Hence, the authorities’ omission to make sure that the applicant received the medication that had been prescribed to him before his arrest was critical for the latter’s state of health.
- The Court observes that when the applicant was admitted to the prison hospital in July 2013, he was diagnosed with a wide range of illnesses. None of those diseases had been recorded at the time of his arrest. Furthermore, during the subsequent period of his detention the applicant was admitted to the hospital no less than five times and spent a total of five months there, each admission having been prompted by a further deterioration in his health and increasing complaints of new health problems. The Court notes that according to the World Health Organisation a problem of adherence to a drug regimen can limit the effectiveness of antiretroviral therapy and lead to resistance of the human immunodeficiency virus. Episodic antiretroviral therapy significantly increases the risk of opportunistic diseases or even death, as well as the development of HIV drug resistance in patients (see paragraph 61 above). The Court observes that the interruption of the applicant’s therapy and the deterioration in his condition occurred during the same period of time, which, in view of the guidelines of the World Health Organisation, might indicate that the development of opportunistic infections during the first two months of the applicant’s detention was linked to the discontinuation of the antiretroviral treatment and could have negated the positive effects of any further antiretroviral therapy.
- The Court further notes that the applicant’s medical record contained a number of entries showing that between July 2012 and December 2013 he received antiretroviral drugs, namely Reyataz and Combivir. Despite the fact that he developed opportunistic infections, the effectiveness of the therapy was never questioned. Moreover, although on 20 September 2012 the medical staff of the AIDS Centre expressly recommended immunological testing, no CD4 cell-count test was performed. The copy of the applicant’s medical file provided by the Government contains only one reference to the results of an immunological test, but it is unclear when the test was conducted. In this respect, the Court reiterates that the guidelines of the World Health Organisation in force at the relevant time insisted on regular immunological testing for all patients receiving antiretroviral therapy. They also indicated that virological and immunological criteria should only be used to confirm the effectiveness of the treatment. In those circumstances, the Court cannot but find that the authorities failed to effectively monitor and, if necessary, correct the applicant’s drug regimen. The issue of an alternative regimen was never discussed, despite the growing number of the applicant’s non-communicable illnesses. There is no evidence in the file that the authorities examined the new health complaints from the perspective of the possible toxic effect of the HIV drugs or the applicant developing resistance to them. It appears that the medical assistance afforded to the applicant in detention took the form of a «sick call» model, with the authorities merely taking steps to address, to an extent, his increasing health problems resulting from his poorly monitored HIV condition and the questionable effectiveness of the antiretroviral therapy, without taking any proactive measures to ensure early disease detection, treatment and disease prevention (see, a contrario, Fedoseievs v. Latvia, (dec.), no. 37546/06, § 50, 19 November 2013). Moreover, the Court is not convinced that the screening, monitoring and managing of the applicant’s non-communicable illnesses was properly carried out through primary care.
- Lastly, the evidence before the Court shows that the applicant needed a special diet in order to improve his health. However, it accepts the applicant’s argument, which was not contested by the Government, that the prison authorities did not fully implement the doctors’ recommendation that he needed a special diet in order to maintain his health (see Gorodnitchev v. Russia, no. 52058/99, § 91, 24 May 2007).
- To sum up, the Court considers that the Government did not provide sufficient evidence to enable it to conclude that the applicant received comprehensive, effective and transparent medical assistance for his HIV infection during detention. The authorities’ failure to provide the applicant with the requisite medical care amounted to inhuman and degrading treatment with the meaning of Article 3 of the Convention.
- Accordingly, there has been a violation of Article 3 of the Convention on account of the authorities’ failure to comply with their responsibility to ensure that the applicant received adequate medical assistance during his detention.
- Alleged violation of Article 5 § 3 of the Convention
- The applicant complained of a violation of his right to trial within a reasonable time and alleged that the orders for his detention had not been founded on sufficient reasons. He relied on Article 5 § 3 of the Convention, which provides:
«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.»
- The Government submitted that given the date of the introduction of the application and in view of the admissibility criteria set out in Article 35 of the Convention, the Court could only take into account the period of the applicant’s detention before 7 December 2012.
- The applicant insisted that his complaint was to be examined in relation to the entire period of his pre-trial detention.
- The Court reiterates that following his arrest on 9 May 2012 the applicant remained in pre-trial detention until his conviction on 6 August 2013. Irrespective of the fact, that the applicant only brought his application to the Court on 2 December 2012, it will examine the entire period of his pre-trial detention, which lasted for slightly less than fifteen months. The Court notes that the applicant complained not of an isolated act but rather of a situation in which he had been for some time and which was to last until it ends. It would be excessively formalistic to demand that an applicant denouncing such a situation should file a new application after each final decision rejecting a request for release or, as the case may be, after each further order extending his detention. The Court finds, moreover, that it should hold itself competent to examine facts which occurred during the proceedings and constitute a mere extension or the facts complained of at the outset (see Novokreshchin v. Russia, no. 40573/08, § 16, 27 November 2014; v. Austria, 10 November 1969, § 7, Series A no. 9, and Neumeister v. Austria, 27 June 1968, § 7, Series A no. 8).
- The Court thus concludes 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.
- Submissions by the parties
- The Government submitted that the applicant’s detention had been based on «relevant» and «sufficient» grounds. He had been charged with a particularly grave offence punishable by up to fifteen years’ imprisonment, his neighbours had portrayed him in a negative light, he had been previously convicted, and he had had no job, regular income or dependents. In those circumstances, the Russian courts had had grounds to believe that he had been likely to abscond or interfere with the investigation. Those circumstances had not changed throughout the applicant’s detention.
- The Government also argued that in applying to the court for extensions of the applicant’s detention, the investigators had indicated which investigatory activities had already been conducted and which were yet to be performed. On several occasions, the applicant had been admitted to hospital, so his presence during investigatory activities and at court hearings had been impossible. The applicant’s argument that his state of health had been incompatible with detention had been thoroughly examined by the courts, which had found it manifestly ill-founded.
- The applicant maintained his claims. He argued that he had not had any intention of absconding, since he had had a stable residence and a job, and no criminal record. According to him, the court’s findings as to the risks of his absconding and influencing witnesses had not been supported by any evidence. He stressed that in extending his detention, the courts had used stereotyped formulae and had relied mainly on the gravity of the charges. They had failed to assess whether other preventive measures could have been sufficient to eliminate the alleged risks of absconding and interference with the investigation.
- As to the celerity of the investigation, the applicant accepted that he had been in hospital for lengthy periods of time. However, most of the investigatory activities had not required his presence. Moreover, it had taken the investigators an unreasonably long time to obtain expert reports.
- According to the applicant, the courts failed to assess whether the length of his pre-trial detention had been reasonable. He concluded by noting that his detention had not been based on relevant and sufficient grounds.
- The Court’s assessment
(a) General principles
- The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of his or her continued detention, whatever other grounds may exist. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been «relevant» and «sufficient», the Court must also ascertain whether the competent national authorities displayed «special diligence» in the conduct of the proceedings. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are «relevant and sufficient» reasons to justify his or her continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I).
- It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84 — 85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV).
(b) Application to the present case
- The Court reiterates that the entire period of the applicant’s pre-trial detention lasted approximately fifteen months,
- The Court considers that the applicant’s detention was initially warranted by a reasonable suspicion of his having committed a murder, supported, as follows from the documents, by his own decision to surrender to the police and confess to the crime. The domestic courts consistently relied on the gravity of the charge as the main factor for the assessment of the applicant’s potential to abscond, reoffend or obstruct the course of justice. The Court cannot overlook the fact that the applicant was charged with a particularly serious criminal offence, murder, which requires a strong response on the part of the authorities, including for the purpose of addressing public reaction usually generated by such offences and thus, in such cases, capable of justifying pre-trial detention, at least for a time (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 51). The Court is also mindful of the authorities’ delicate task of balancing rights of an accused, including his right to liberty and presumption of innocence, against the need to maintain public order and security of the society. At the same time, the Court adheres to its position, expressed in a long list of cases, including those against Russia, that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier, cited above, § 51; see also Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001; and Pichugin v. Russia, no. 38623/03, § 135, 23 October 2012).
- The Court reiterates the Government’s argument, disputed by the applicant, that the latter’s criminal record served as yet another ground for his continuous detention. In this respect, the relevance of detainees’ prior convictions is undeniably a factor to take into account when deciding to depart from the rule of respect for individual liberty, although reference to a person’s prior record cannot, on its own, suffice to justify refusal of release (see, among other authorities, Sergey Vasilyev v. Russia, no. 33023/07, § 84, 17 October 2013, with further references). However, the Court observes that the factor of the criminal record is particularly doubtful in the present case. In particular, the only detention decision citing the applicant’s criminal record was issued upon the authorisation of his remand in custody on 11 May 2012 (see paragraph 6 above). The following detention order was no longer as precise and merely referred to the applicant having been «the subject of criminal prosecution» (see paragraph 8 above). However, what is more important is that no subsequent detention orders referred to the existence of the criminal record or cited any criminal background on the applicant’s part (see paragraphs 9 — 11 above). To the contrary, both the prosecution authorities in the indictment bill, and the trial court in its judgment noted the lack of the criminal record (see paragraphs 12 and 13 above). The trial court even went as far as to use this circumstance to mitigate the applicant’s criminal liability and reduce his sentence (see paragraph 13 above). The Court, however, does not consider it necessary to rule on the cause of the mentioned discrepancies between the very first detention orders and the remaining procedural documents in the applicant’s case. It merely considers established that at least after 2 August 2012 the applicant’s previous encounters with the criminal law, if any existed, had no bearing on the matter of his deprivation of liberty. In such circumstances, the Court cannot accept that there was a reasonable ground to fear that the applicant would commit new offences, if released (see Sergey Vasilyev, cited above, § 85).
- The final grounds indicated by the domestic courts while extending the applicant’s detention stemmed from poor references given to him, as the Government indicated, by his neighbours, as well as from the applicant’s precarious employment and family situation, cited by the Russian courts in support of their fear that the applicant will abscond.
- While the Court considers opinions and references important to understand different facets of the applicant’s personality, his values, attitudes, traits of behaviour and the risk flowing therefrom, including those to the interests of justice, it can hardly agree that bad references, on their own, can outweigh the crucial right to liberty and justify detention, particularly so when such opinions were only expressed in writing and were never challenged through a confrontation in open court. Moreover, it is important to remember a particularly volatile nature of a personal opinion, as was also demonstrated in the present case, when the positive characteristics provided to the applicant served as yet another mitigating circumstance in his conviction (see paragraph 13 above).
- The Court further notes that the domestic authorities considered that the applicant might abscond due to his lack of the «official» source of income and his having had no dependents. It might accept the grounds cited by the authorities as relevant. However, it cannot find them decisive given that the judicial decisions authorising the applicant’s continued detention remained silent as to why such risk of absconding could not have been offset by any other means of ensuring his appearance at trial (see Sergey Vasilyev, cited above, § 85).
- The Court reiterates that when deciding whether a person should be released or detained the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at trial. This Convention provision proclaims not only the right to «trial within a reasonable time or to release pending trial» but also lays down that «release may be conditioned by guarantees to appear for trial» (see Sulaoja v. Estonia, no. 55939/00, § 64 in fine, 15 February 2005, and v. Poland, no. 33492/96, § 83, 21 December 2000). The Court notes that, while accepting the investigators’ allegations that the applicant was likely to avoid or pervert the course of justice, the courts gave no heed to important and relevant facts supporting the applicant’s pleas for liberty and reducing the risk that he would abscond or collude. Among those, the Court can identify, in particular, the progress of his HIV infection and the rapid deterioration of his health. In these circumstances, the Court cannot but conclude that the domestic courts failed to assess the applicant’s personal situation and to give specific reasons, supported by evidentiary findings, for holding him in custody during the period under examination.
- To sum up, the Court considers that by failing to address specific facts or consider alternative «preventive measures» and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although «relevant», cannot be regarded as «sufficient» for the entire period of detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with «special diligence».
- There has accordingly been a violation of Article 5 § 3 of the Convention.
III. Alleged violation of Article 13 of the Convention
- The applicant lastly claimed that he had not had at his disposal an effective remedy to complain of a lack of adequate medical assistance, as required under Article 13 of the Convention, which reads as follows:
«Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority…»
- Submissions by the parties
- The Government argued that the applicant had had a right to complain of a lack of medical care in detention to the administration of the detention facility, to the prosecutor’s office or to the courts. The administration had not hindered the applicant’s right to complain to the authorities. However, during the period of his detention the applicant had not raised the issue before the administration of the facility or before other authorities, including the courts. Accordingly, his allegation of a lack of effective avenues to complain of inadequate medical care in detention was unsubstantiated.
- The applicant maintained his claims.
- The Court’s assessment
- 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.
- The Court reiterates that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of an «arguable» complaint under the Convention and to grant appropriate relief (see, as a classic reference, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131).
- The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; the «effectiveness» of a «remedy» within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. At the same time, the remedy required by Article 13 must be «effective» in practice as well as in law, in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see , cited above, §§ 157 — 58, and Wasserman v. Russia (no. 2), no. 21071/05, § 45, 10 April 2008).
- Where the fundamental right to protection against torture and inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3 of the Convention. Indeed, the particular importance attached by the Convention to that provision requires, in the Court’s view, that the States Parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly. Otherwise, the prospect of compensation would legitimise particularly severe suffering in breach of this core provision of the Convention (see Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008).
- Turning to the facts of the present case, the Court notes the Government’s argument that the applicant did not attempt to make use of any avenues for exhausting remedies. However, it is not convinced by those submissions. The documents produced by the applicant show that his lawyer had on numerous occasions drawn the attention of the investigators, of the facility administration and of the courts to the applicant’s state of health.
- However, the Court’s task in the present case is to examine the effectiveness of various domestic remedies suggested by the Russian Government and not merely to determine whether the applicant made his grievances sufficiently known to the Russian authorities. The Court has on many occasions examined the effectiveness of the domestic remedies suggested by the Government in cases of applicants complaining of ongoing inadequate medical treatment, such as in the present case. It found, in particular, that in deciding on a complaint concerning breaches of domestic regulations governing the provision of medical care to detainees, the prison authorities would not have a sufficiently independent standpoint to satisfy the requirements of Article 35 of the Convention (see Dirdizov v. Russia, no. 41461/10, § 75, 27 November 2012 and Koryak v. Russia, no. 24677/10, § 79, 13 November 2012). The Court also stressed that even though review by a supervising prosecutor played an important part in securing appropriate medical care in detention, a complaint to the supervising prosecutor fell short of the requirements of an effective remedy because of the procedural shortcomings that had been previously identified in the Court’s case-law (see Koryak, cited above, §§ 80 — 81). Having assessed a civil claim for compensation under the tort provisions of the Civil Code, the Court considered that such a claim could not offer an applicant any other redress than a purely compensatory award and could not put an end to a situation where there was an ongoing violation, such as inadequate medical care (see Reshetnyak v. Russia, no. 56027/10, §§ 65 — 73, 8 January 2013). Moreover, the Court found that such a remedy did not offer reasonable prospects of success, in particular because the award was conditional on the establishment of fault on the part of the authorities, which was extremely improbable in a situation where domestic legal norms prescribed the application of a certain measure, for instance, certain conditions of detention or level of medical treatment (see A.B. v. Russia, no. 1439/06, § 96, 14 October 2010).
- In the light of the above considerations, the Court sees no reason to depart from its previous findings and concludes that the legal avenues put forward by the Government did not constitute an effective remedy that could have been used to prevent the alleged violations or their continuation and provide the applicant with adequate and sufficient redress for his complaints under Article 3 of the Convention.
- To sum up, the Court finds that the applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention.
- Application of Article 41 of the Convention
- 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.»
- The applicant claimed 500,000 Russian roubles (RUB, approximately 7,000 euros (EUR)) in respect of non-pecuniary damage.
- The Government submitted that the Court’s judgment would in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant, given that the entire period of his detention had been deducted from his prison term under the judgment of 6 August 2013 and that his complaint under Article 3 of the Convention was manifestly ill-founded.
- The Court, making its assessment on an equitable basis, decides that the sum claimed by the applicant must be paid in full, plus any tax that may be chargeable.
- Costs and expenses
- The applicant also claimed RUB 20,000 (approximately EUR 280) for the costs and expenses incurred before the domestic courts and RUB 111,000 (approximately EUR 1,600) for those incurred before the Court.
- The Government submitted that the applicant’s complaints to the Russian courts had no relevance to his complaints to the Court. As to the expenses incurred before the Court, the Government noted that the applicant’s claims were not based on a contract or any other official document setting out the hourly fee charged by the applicant’s representative. Taking into account the limited scope and relative simplicity of the issues raised by the application, the Government doubted that the case had required thorough research on the part of the applicant’s lawyer.
- According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court notes, firstly, that the applicant was granted legal aid for his representation before the Court. The Court considers that the sum afforded in legal aid for his representation before the Court is sufficient to cover his expenses under this head. As to the remaining claims in respect of legal representation, having regard to the documents in its possession and the above criteria, the Court considers that the legal services provided to the applicant, for which the above-mentioned expenses were incurred, were directly related to the protection of the applicant’s rights guaranteed by Article 3 and Article 5 § 3 of the Convention. The Court therefore considers it reasonable to award the sum claimed in full in respect of the costs and expenses incurred before the Russian courts, together with any tax that may be chargeable.
- Default interest
- 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,
- Declares the application admissible;
- Holds that there has been a violation of Article 3 of the Convention;
- Holds that there has been a violation of Article 5 § 3 of the Convention;
- Holds that there has been a violation of Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 7,000 (seven thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 280 (two hundred and eighty euros), in respect of costs and expenses incurred before the domestic courts, plus any tax that may be chargeable to the applicant;
(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;
- Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Luis GUERRA President
Stephen PHILLIPS Registrar