EUROPEAN COURT OF HUMAN RIGHTS
CASE OF VASENIN v. RUSSIA
(Application no. 48023/06)
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Vasenin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis Guerra, President,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 31 May 2016,
Delivers the following judgment, which was adopted on that date:
- The case originated in an application (no. 48023/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by a Russian national, Mr Yevgeniy Igorevich Vasenin («the applicant»), on 3 November 2006.
- The applicant, who had been granted legal aid, was represented by Ms K. Moskalenko and Ms V. Bokareva, lawyers from the International Protection Centre in Moscow, and Ms V. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
- The applicant alleged, in particular, that the detention authorities had not provided him with adequate medical assistance; that his detention in a temporary detention facility after the court order of 3 May 2006 for his compulsory treatment in a mental institution had been arbitrary; and that the criminal proceedings against him had been unfair. In particular, it had not been possible for him to attend the trial, the quality of legal aid had been poor, and he had been stripped of the right to appeal against the judgment of the trial court.
- On 13 June 2012 the application was communicated to the Government.
- The circumstances of the case
- The applicant was born in 1973 in Perm. He is currently detained in Kostroma Region.
- In 2002 a court found that the applicant, who suffered from schizophrenia, had committed a number of criminal offences, including possession of drugs and aggravated robbery, and ordered his admission to a psychiatric hospital. The applicant was placed in a mental institution in Leningrad Region, where he remained until 30 January 2005, when he escaped.
- On 21 September 2005 he was arrested by the Ukrainian border police for an unlawful attempt to cross the border. On the same day the Lychakivsky District Court of Lviv sentenced him to fifteen days administrative detention. According to a certificate issued by the Ukrainian Border Service in Lvov, the applicant was detained from 21 September to 6 October 2005.
- Criminal proceedings and detention
- In 2005 the police opened a criminal investigation into the arson of vehicles belonging to a private company.
- According to the applicant, on 28 November 2005 he was arrested by the police in Belgorod, a town near the Ukrainian border, during a random identity search operation. He was taken to a police station and allegedly beaten up to force him to confess to the criminal offences. The following day the applicant confessed to having set a vehicle on fire on 9 August 2005.
- A report indicated that the applicant was arrested on 29 November 2005. On the same day he wrote a statement, confessing to having burnt out a car together with an accomplice. The investigator assigned a legal-aid lawyer and questioned the applicant in his presence. The applicant again confessed to the arson attack. He also mentioned that several months earlier he had escaped from a psychiatric hospital, where he underwent treatment under a court’s order.
- On 30 November 2005 the investigator asked the Belgorod District Court of the Belgorod Region to order the applicant’s placement in custody.
- On 1 December 2005 the request was granted. The District Court held that the applicant was charged with a serious criminal offence punishable by up to five years’ imprisonment. His escape from a mental hospital and his lack of a permanent place of residence demonstrated his liability to abscond. Furthermore, relying on statements by a witness who had testified to having been approached by the applicant with a view to «discussing charges against him», the court found that the applicant was prone to influencing witnesses and obstructing justice. It concluded that only detention could ensure the interests of justice.
- The applicant was admitted to temporary detention facility no. IZ-31/1 in Belgorod. He shared a cell with other detainees. There is no evidence suggesting that the detention authorities had made an effort to accommodate the applicant’s mental disorder.
- The applicant submitted that after his admission to the detention facility the police officers who had allegedly beaten him up after the arrest had again driven him to the police station for questioning, had handcuffed him to a heating unit and had left him in that position until late evening. He had not been given food for the entire day and had only twice been allowed to use a toilet.
- On 2 December 2005 the applicant confessed to having blown up a car with an accomplice on 5 October 2005. He later repeated the confession at the crime scene.
- In January 2006 the investigating authorities charged the applicant with a robbery committed on 25 November 2005. They also asked the District Court to extend the applicant’s detention pending investigation, claiming that the case was complex and that more time was necessary to complete the investigation. The defence argued that the applicant was in need of psychiatric treatment and that he therefore should be released and admitted to a mental institution. On 26 January 2006 the court extended his detention until 16 February 2006, having considered that that there were no circumstances warranting the applicant’s release.
- Another extension, based on the same reasoning, followed on 9 February 2006. The applicant was to be detained until 16 April 2006.
- In the meantime, the investigators authorised a psychiatric expert examination of the applicant. In a report issued on 15 February 2006, psychiatrists indicated that the applicant suffered from paranoid continuous progressive schizophrenia and the initial stage of paraphrenia. The doctors also noted that that serious emotional disorder made the applicant particularly dangerous and thus called for his detention under constant psychiatric supervision.
- Acting in response to the psychiatrists’ findings, the authorities appointed, on 16 March 2006, a legal guardian to assist the applicant in the proceedings.
- On 30 March 2006 the pre-trial investigation was closed and the applicant was committed for trial before the Oktyabrskiy District Court of Belgorod. Referring to his diagnosis, the prosecution sought his admission to a psychiatric hospital.
- On 7 April 2006 the applicant lodged an application with the Oktyabrskiy District Court asking for a preliminary hearing to be held in his case. He disputed the charges and declared his innocence. Without submitting documentary evidence the applicant argued that he had been detained in Ukraine between 22 September and 6 October 2005 and thus he had not committed any crime during that period. He also disagreed with the expert report of 15 February 2006, stating that a psychiatric hospital with a lighter security regime would be more appropriate for his condition. Lastly, he asked that his presence at the trial be ensured, as he doubted the efficiency of the legal aid. He noted that he had never met with his legal guardian.
- On 13 April 2006 the court held the preliminary hearing. The applicant was present. The court was to decide on the applicant’s continued detention and the need for his personal presence at trial.
- The applicant and his legal-aid counsel expressed different opinions on several matters. While the applicant insisted on his transfer from the ordinary detention facility to a psychiatric hospital, his legal guardian and legal-aid lawyer agreed to the extension of his detention. As regards the necessity of his presence, the applicant’s counsel argued that it was desirable, but not necessary. The legal guardian submitted that the issue could be discussed at a later stage. The applicant strongly insisted on his personal participation, as he was afraid that otherwise he could be convicted of crimes which he had not committed.
- Having heard the parties, the court ordered the applicant’s detention pending trial and stated that the trial was to be held in his absence, as the personal participation of persons suffering from a mental disorder was not provided for by the Russian Code of Criminal Procedure for cases such as the one to be decided.
- The applicant challenged the decision of 13 April 2006, but ten days later his claim was returned without examination on the merits. The court held that his lawyer or legal representative only had a right, under Russian law, to lodge an appeal in such category of cases.
- On 25 April 2006 the court held a trial hearing in the presence of a prosecutor, the victims, their lawyers, the applicant’s counsel and legal guardian. The applicant himself was not brought to the court-house. The court read out records of the statements made by the victims at the pre-trial stage and heard testimony from one of the victims. It further read out statements by seven witnesses and studied the applicant’s written confessions made on 29 November and 2 December 2005. It examined other documents and material evidence. Neither the legal-aid counsel nor the legal guardian made any applications or objections. They did not ask any questions during the victim’s cross-examination and did not challenge the admissibility of any item of evidence, including the applicant’s confession. During their closing arguments the lawyer and the guardian acknowledged that the applicant had committed the impugned offences. They stated that owing to his mental disorder he should not bear criminal or civil responsibility and should be admitted to a high-security psychiatric hospital under intensive supervision.
- On 3 May 2006 the District Court delivered its judgment. It established that on 9 August 2005 the applicant and his accomplice had set fire to a car; that on 5 October 2005 they had blown up another car and that on 25 November 2005 they had committed a robbery. Relying on the psychiatric report of 15 February 2006 the court ordered the applicant’s treatment in a high-security psychiatric institution under intensive supervision. It held that the preventive measure in the form of the applicant’s detention should remain unchanged until his admission to a psychiatric hospital.
- On 12 May 2006 the applicant appealed. He also asked the court to provide him with the trial records from the first-instance court proceedings. The applicant argued that he had been unlawfully convicted of crimes he had not committed, that his confession had been given under pressure and that his defence team, comprising the legal-aid counsel and the legal guardian assigned against his will, had been manifestly ineffective. The applicant submitted that on 5 October 2005 he had still been in detention in Ukraine and therefore he could not have blown up a car in Russia on the same day.
- A similar complaint was filed with the Belgorod regional prosecutor’s office.
- Neither the applicant’s counsel, nor his guardian lodged an appeal against the judgment of 3 May 2006. It became final on 13 May 2006.
- On 15 May 2006 the court dismissed the applicant’s application for access to the trial records as such a request could only be lodged by his defence counsel or legal guardian. Two days later the Oktyabrskiy District Court returned the applicant’s appeal against the judgment of 3 May 2006, informing him that his lawyer or legal guardian were the only ones with the authority to appeal. A similar response arrived from the prosecutor’s office on 26 May 2006.
- On 11 June 2006 the judgment of 3 May 2006 was enforced and the applicant was admitted to Oryol Psychiatric Hospital.
- Supervisory review
- In 2012 the Belgorod regional prosecutor’s office applied to the Presidium of the Belgorod Regional Court for supervisory review of the case referring to the breach of the applicant’s right to defence.
- On 27 September 2012 the request was granted. Invoking Article 6 § 3 (c) of the Convention, the court held that the trial court’s decision to hold the hearings in the applicant’s absence had been unjustified.
- On 11 October 2012 the Presidium of the Belgorod Regional Court acknowledged a violation of the applicant’s right to defence, quashed the judgment of 3 May 2006 and remitted the case to the Oktyabrskiy Regional Court for a fresh examination on the merits.
- Fresh examination
- The first hearing in the case was to be held on 19 November 2012, but the court was unable to summon the applicant. The summons was returned with a note that the applicant could not be found at the indicated address. On 26 November and 6 December 2012 the District Court repeatedly attempted to inform the applicant of the hearing by registered post and telegram. The summons was not served on the applicant as he had left the place of his residence.
- On 6 December 2012 the District Court held that it could not proceed with the examination of the criminal case in view of the lack of any knowledge of his whereabouts. It returned the case to the investigating authorities with an order to find the applicant.
- The parties did not inform the Court of the outcome of the proceedings.
- Complaints of police ill-treatment in 2005
- On 10 December 2005 the applicant complained to the Belgorod town prosecutor’s office about his arrest and subsequent ill-treatment. The complaint contained no references to bodily injuries or possible witnesses to the beatings. It was not supported by any other evidence.
- Having questioned the alleged perpetrators, who denied any instance of ill-treatment, the prosecutor’s office refused to open a criminal case on 20 January 2006.
- On 27 February 2006 a higher-ranking prosecutor overturned the decision of 20 January 2006 with an order to verify whether the applicant had had any injuries on his admission to the detention facility.
- On 10 March 2006 the prosecutor’s office again refused to open a criminal case, mainly referring to the applicant’s mental disorder. On 14 April 2006 the Oktyabrskiy District Court upheld the refusal.
- Medical treatment between December 2005 and September 2009
- The applicant was detained in the following institutions: from 2 December 2005 to 11 June 2006 in the temporary detention facility; from 11 June 2006 to 4 December 2007 in Oryol Psychiatric Hospital; from 4 December 2007 to 24 February 2009 in St Petersburg High-Security Psychiatric Hospital; and from 24 February to 31 August 2009 in Kashchenko Psychiatric Hospital in St Petersburg. The applicant was then discharged for outpatient treatment.
- Mental condition
- Shortly after his admission to the temporary detention facility the applicant was seen by a resident doctor, whom he informed that he had been suffering from schizophrenia since 2001.
- In the end of December 2005 he was examined by a psychiatrist. According to the doctor’s report of 21 December 2005, the applicant had maniacal schizophrenia. Having noted that his condition did not call for any drug regimen, the doctor recommended his further examination and treatment in a mental institution.
- A report prepared by the detention authorities for the applicant’s examination by a psychiatric commission indicated that there were no peculiarities in his general behaviour. He had good relations with inmates and was respectful of the authorities. He never violated prison regulations.
- On 15 February 2006 the applicant was examined by a commission of doctors from Belgorod Regional Clinical Psychoneurological Hospital. The experts confirmed that the applicant suffered from paranoid continuous progressive schizophrenia and paraphrenia in the initial stage. They recommended treatment in a high-security medical institution with intensive supervision, given the danger the applicant posed to those around him.
- During his stay in the temporary detention facility he received no antipsychotic drugs. No aggressive outbursts or other incidents were recorded.
- On admission to Oryol Psychiatric Hospital in June 2006 the applicant behaved aggressively. He was given antipsychotic medication. In the beginning of February 2007 his mental condition improved. By the end of 2007 his behaviour was satisfactory.
- During his stay in St Petersburg High-Security Psychiatric Hospital and in Kashenko Psychiatric Hospital, St Petersburg the applicant received standard psychiatric treatment with antipsychotic medication. His mental condition significantly ameliorated, he was no longer in need of inpatient treatment and he was therefore released.
- A chest X-ray examination performed several days after his admission to the temporary detention facility disclosed that the applicant had been infected with focal tuberculosis at the infiltration stage. The applicant was seen by a doctor. A standard treatment regimen with first-line antibacterial drugs was ordered.
- Daily entries in his medical records show that between 13 January and 20 April 2006 the applicant received the prescribed anti-tuberculosis drug regimen. A scheduled break in his treatment followed.
- In Oryol Psychiatric Hospital his treatment continued. A chest X-ray in February 2007 showed that the tuberculosis had been «clinically cured», with only insignificant traces of the disease remaining in the left lung. On 10 November 2008 doctors confirmed his complete recovery.
- The submitted documents indicate that during his treatment the applicant was subjected to regular X-ray examinations, and blood and sputum tests.
- A blood test carried out by Oryol Psychiatric Hospital on 16 June 2006 showed that the applicant had hepatitis C. On 29 June 2006 he was seen by an infectious diseases specialist. Treatment with a regimen of drugs was prescribed. It resulted in the remission of the hepatitis in June 2007. In December 2007 the doctor confirmed the full remission. When asked by the doctor about the possible causes of the infection, the applicant stated that he had shared his safety razor with inmates in the temporary detention facility.
- Subsequent medical tests and check-ups did not show any deterioration in the applicant’s health. It appears from the submitted documents that the illness has remained dormant ever since.
- Further events
- On 11 June 2012 the applicant was arrested in Ivanovo for drug trafficking. The Leninskiy District Court of Ivanovo authorised his detention. He was placed in a temporary detention facility. In 2013 he was transferred to a psychiatric hospital in Kostroma Region.
- Relevant domestic law and practice
- Medical care afforded to detainees
- The relevant provisions of domestic and international law governing the health care of detainees are set out in the cases of Ivko v. Russia, (no. 30575/08, §§ 55 — 63, 15 December 2015), Amirov v. Russia, (no. 51857/13, §§ 50 — 57, 27 November 2014), Pakhomov v. Russia (no. 44917/08, §§ 33 — 39 and 42 — 48, 30 September 2011) and Yevgeniy Alekseyenko v. Russia (no. 41833/04, §§ 60 — 66 and 73 — 80, 27 January 2011).
- Detention on remand and compulsory measures of medical nature
- The relevant provisions of domestic law governing detention on remand and application of compulsory measures of a medical nature are summarised in the case of Proshkin v. Russia (no. 28869/03, §§ 37 — 45, 7 February 2012).
- Under Article 308 of the Russian Code of Criminal Procedure («the CCrP»), a sentence must contain a ruling on the preventive measure applied until the sentence becomes final.
- Under Article 443 § 3 of the CCrP, proceedings for the application of compulsory measures of a medical nature are governed by the general rules laid down by that same Code (including Article 308 of the CCrP) and special provisions provided for by Chapter 51 of the CCrP, «Proceedings on the application of compulsory measures of a medical nature».
- Judicial proceedings on the application of compulsory measures of a medical nature
- The regulation of the judicial proceedings on the application of compulsory measures of a medical nature and issues related to the personal presence of mentally ill persons are described in the case of Valeriy Lopata v. Russia (no. 19936/04, §§ 79 — 81, 30 October 2012).
- The Code of Criminal Procedure of Russia («the CCrP»), as in force at the material time, did not list persons of unsound mind among those who had a right to study the case file, participate in court hearings, or appeal against court decisions. According to Articles 402, 437 — 39, and 444 of the CCrP, only a legal guardian or counsel could exercise the aforementioned rights.
- On 20 November 2007 the Russian Constitutional Court delivered decision no. 13-П, having examined the compliance with the norms of the CCrP regulating judicial proceedings related to the application of compulsory measures of a medical nature with the Constitution of Russia. It found that the CCrP did not provide persons of unsound mind with access to the case file, with the right to participate in court hearings, or to appeal against court decisions.
- The Constitutional Court reiterated that in accordance with Article 6 § 3 (c) of the Convention everyone charged with a criminal offence had a right to defend himself or herself in person or through legal assistance of his or her own choosing or, if he or she did not have sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. It further held that the proceedings on the application of compulsory measures of a medical nature were governed by the general provisions of the Code of Criminal Procedure of Russia and special rules set out in the relevant chapter.
- Having relied on its previous decision delivered in 2000, the Constitutional Court noted that while guaranteeing procedural rights to those persons whose rights and interests were affected by the criminal proceedings, its decision should not only be based on the formal procedural status of a person in those proceedings; it should also enquire into the major features of the factual position of such a person in the proceedings. Relying on a number of the provisions of the Russian Criminal Code, the Constitutional Court noted that a person to whom compulsory measures of the medical nature might be applied, in the same way as an accused or defendant in a criminal case, is, in fact, being accused of having committed an offence which is proscribed by the criminal law. The Constitutional Court also noted that that person, until his or her psychiatric examination results are known, had the status and procedural rights of «an ordinary» accused or suspect provided for by the Russian Code of Criminal Procedure and concluded that he or she should therefore continue to be treated equally to other persons against whom criminal proceedings are pending.
- Referring to the case of Romanov v. Russia (no. 63993/00, 20 October 2005), it concluded that a person in respect of whom a court may decide to apply compulsory measures of a medical nature should be afforded the same procedural rights and guarantees as those afforded to a suspect or an accused in an ordinary criminal case. The fact that a person of unsound mind was not mentioned in Articles 402, 439 §§ 3 and 6, 444 and 445 § 1 of the CCrP per se could not be interpreted as depriving him or her of those procedural rights. The Constitutional Court condemned the courts’ approach of automatically, as a rule, considering a mentally ill person to be unable or incapable of exercising his or her procedural rights in person. It declared incompatible with the provisions of the Constitution of Russia any norm of the CCrP, including Articles 402, 439 §§ 3 and 6, 444 and 445 § 1, in so far as they were interpreted as to strip persons of unsound mind of procedural rights, including the right to study the case file, to participate in court hearings or to challenge court decisions.
- On 7 April 2011 the Supreme Court of Russia delivered Ruling no. 6 «On the application of compulsory measures of a medical nature by the courts». At the outset the Supreme Court stressed that the national courts when deciding on the applicability of compulsory measures of a medical nature should strictly follow the rules of the Russian Constitution, Criminal law, Criminal Procedure, and the Law on the Execution of Sentences, as well as the case-law of the European Court of Human Rights. It further drew the attention of the national courts to the fact that compulsory measures of a medical nature were criminal in character. The Supreme Court also held that a psychiatric expert examination should be ordered in every criminal case, if a doubt had arisen regarding the suspect’s or accused’s sanity or ability to protect his or her rights and interests in the proceedings on their own. A person subjected to the proceedings on the application of compulsory measures of a medical nature should be entitled to exercise all of the rights vested in a suspect or accused in an ordinary criminal case.
- On 29 November 2010 Federal Law no. 323-FZ introduced amendments to the CCrP entitling persons of unsound mind to exercise their procedural rights directly, in person, if their mental condition allowed them to do so.
- Legal representation
- The relevant provisions of domestic law governing legal representation are set out in the case of Volkov and Adamskiy v. Russia (nos. 7614/09 and 30863/10, §§ 21 — 25, 26 March 2015).
- Pursuant to Article 7 § 1 of the Advocates Act of 31 May 2002, defence counsel must protect the rights and interests of his or her client honestly, reasonably and in good faith by all means not prohibited by Russian law. He or she also must follow rules of bar ethics (адвокатская этика).