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FIRST SECTION

Application no. 46108/11
Telman Akopovich MKHITARYAN
against Russia
lodged on 25 May 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Telman Akopovich Mkhitaryan, is a Russian national who was born in 1947 and lived until his arrest in the town of Velikiy Novgorod, Novgorod Region. He was represented before the Court by Mr A. Leontyev, a lawyer practising in St. Petersburg.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  Criminal proceedings against the applicant. His arrest and detention

On 30 October 2008 criminal proceedings were instituted against the applicant. Prosecution authorities suspected that, having organised a criminal group and having used threats of violence, the applicant committed two counts of aggravated extortion.

In July 2009 an investigator issued a bill of indictment and a warrant for the applicant’s arrest. The applicant was placed on international list of wanted persons because the prosecution authorities believed that he had left Russia.

On 4 August 2009 the Novgorod Town Court authorised the applicant’s placement in custody, having reasoned that the charges against him were very serious and that the applicant had left his place of residence and had fled Russia in 2007. There was evidence that the applicant intended to remain on the run and carefully hid any information which could have disclosed his whereabouts.

On 27 August 2010, having learnt that the applicant was in Armenia, a deputy Prosecutor General of the Russian Federation sent a letter to a deputy Prosecutor General of Armenia, seeking the applicant’s arrest and extradition. Two weeks later the Armenian authorities accepted the request and on 24 September 2010 the applicant was apprehended and placed in detention facility “Naburashen” where he remained until his extradition to Russian on 22 October 2010.

On 30 October 2010, given his suffering from a serious heart disease and in view of the deterioration of his state of health, the applicant was admitted to the Gaaza Federal prison hospital in the Leningrad Region. Having suffered a stroke in the night of 24 November 2010, the applicant was transferred to the resuscitation unit of the hospital.

On the following day, after the applicant’s release from the resuscitation unit, he was served with the bill of indictment in the presence of one of his lawyers.

The applicant’s lawyers lodged a complaint with the Oktyabrskiy District Court of St. Petersburg, having complained about the investigator’s erroneous decision to serve the applicant with the bill of indictment in a hospital in disregard of his poor state of health and his being under the influence of strong sedatives.

On 10 December 2010 the District Court dismissed the complaint, having found no evidence that the applicant’s defence rights had been violated. The court noted that the applicant’s attending doctor had consented to the service of the bill of indictment, having considered the applicant’s health to be satisfactory, and that a lawyer had assisted the applicant during the procedure. The decision was upheld on appeal by the St. Petersburg City Court on 14 March 2011.

According to the applicant, on 14 December 2010 Erubeni and Nabirashen District Court in the Republic of Armenia declared the applicant’s detention in Armenia unlawful as it had been authorised by an improper official.

On 17 December 2010 the Novgorod Town Court accepted the investigator’s request and extended the applicant’s detention on remand until 22 February 2011. The District Court’s reasoning was as follows:

“The court accepts the investigator’s arguments that the investigation in the present case is particularly complicated. The two particularly grave crimes were committed in 1998 and 2004. The law-enforcement authorities only learned about them in 2008. Two persons are being charged with the criminal offences within this criminal case. The case file has 40 volumes.

[The applicant] is charged with two intentional particularly grave criminal offences which were directed against property [and] committed by a group of persons in concert; it shows that the criminal offences present higher danger to the society. The Criminal Code of the Russian Federation establishes maximum penalty of fifteen years’ imprisonment for each of the crimes.

[The applicant] has not been convicted before and he has not been charged with an administrative offence. He is not registered as a psychiatric patient or a drug addict.

The following grounds were taken into account when detention was chosen as a measure of restraint for [the applicant]: sufficient information allowing a conclusion that [the applicant] is liable to abscond the investigation and trial and to interfere with the proceedings by tampering with witnesses [and] victims.

Those circumstances, as listed in Article 97 of the Russian Code of Criminal Procedure, have not changed.

The case file materials contain information that [the applicant] was placed on a wanted persons’ list in the course of the pre-trial investigation – first, the federal warrant for his arrest [was issued] and then an international warrant [followed]; [he] did not respond to investigator’s summonses to take part in investigative actions; for a long period of time [he] did not live at the place of his registration; he has a travel passport and also has immovable property in foreign countries; on a number of occasions between 2007 and 2009 he crossed the border of the Russian Federation. The court therefore has sufficient evidence to conclude that, if released, [the applicant] may leave the territory of the Russian Federation, including by going to the countries with which Russia has no-visa policy. In these circumstances, a more lenient measure of restraint cannot ensure [the applicant’s] participation in the criminal proceedings, also taking into account the gravity of the charges and the amount of damage caused by the crimes. The abovementioned circumstances are confirmed by copies of the warrant for [the applicant’s] arrest, copies of the investigator’s summonses and records, copies of responses from the migration service and airline companies ‘Armavia’ and ‘Aeroflot’, and also by certificates in reply to the investigator’s orders.

Moreover, the case file materials contain sufficient evidence showing that if [the applicant’s] measure of restraint is revoked or changed to a more lenient one, he will be able to interfere with the proceedings in the case by tampering with witnesses and victims either through his own actions or with the help of intermediaries. This conclusion is confirmed by records of interrogations [of two victims and two witnesses]; during [those interrogations] the abovementioned persons stated that [the applicant] had exerted pressure on them or that there was a possibility that such pressure would be applied by [the applicant] or individuals from his close circle.

[The applicant] suffers from a number of illnesses; [this fact] is confirmed by medical documents. At the same time, the court established that the applicant received and continues receiving necessary medical and consultative assistance in detention.

The defence did not present any evidence showing that [the applicant’s] state of health precludes his detaintion. It follows that the fact that [the applicant] suffers from a number of illnesses cannot be taken as an absolute ground calling for a change of the measure of restraint to a more lenient one. The court does not take into account information on [the applicant’s] state of health contained in a response by a cardiologist, Mr B., from the Mechnikov Medical Academy in St. Petersburg to a lawyer’s letter of 7 December 2010 because this medical specialist is not [the applicant’s] attending doctor, he does not [examine] the applicant on the daily basis and he only provides consultative services. At the same time [the applicant’s] attending doctor, when questioned by the investigators, did not indicate that there was a risk to [the applicant’s] life; to the contrary, he explained that [the applicant] is provided with necessary medical assistance and his numerous complaints about the state of his health are connected to his psychological and emotional condition.

The court does not see any grounds to change [the applicant’s] measure of restraint... to a more lenient one, including bail, because that lenient measure cannot comply with the purposes of the criminal proceedings in the present case, in particular it will not prevent the possibility of witness tampering which [the applicant] is liable to do if released, and will not preclude his absconding.

The measure chosen for [the applicant] corresponds to the gravity of the charges, his personality, his behaviour before and during the criminal proceedings and the seriousness of the penalty which [the applicant may face].”

The applicant’s lawyers appealed, having argued, among other things, that the applicant was a seriously ill person whose health was rapidly deteriorating in the conditions of a detention facility and in the absence of adequate medical care.

On 11 January 2011 the Novgorod Regional Court upheld the decision of 17 December 2010, having endorsed the Town Court’s reasoning.

On 18 February 2011 the Novgorod Town Court again extended the applicant’s detention, until 24 April 2011. The Town Court’s reasoning was similar to the one given in its previous detention order of 17 December 2010. It, however, based the new extension decision on additional evidence which, in the Town Court’s opinion, confirmed the reasonable suspicion that the applicant was liable to abscond. In particular, the Town Court noted that the case file materials showed that the applicant, acting through intermediaries, had taken steps to transfer title to his property to other people. The Town Court also dismissed the lawyers’ arguments pertaining to the state of the applicant’s health, having found no evidence in support of the allegation that his life and health were under imminent risk in view of his continued detention in an ordinary detention facility or prison hospital. The applicant was absent from the hearing because a medical commission comprising three doctors from the Gaaza prison hospital found him unfit to participate.

That detention order was upheld on appeal by the Novgorod Regional Court on 3 March 2011. The Regional Court also supported the Town Court’s conclusion that the applicant’s state of health did not interfere with his further detention.

On 22 April 2011 another extension order was issued by the Novgorod Town Court. The reasoning was identical to that given in the previous detention decisions. The detention was extended until 24 July 2011.

The Town Court authorised further extensions of the applicant’s detention on 22 July and 22 August 2011. Each time it relied on the gravity of the charges against the applicant and his liability to abscond and obstruct justice. The Town Court intepreted the fact that the applicant had obtained a new travel passport as indication of his intention to abscond if released. The lawyers’ arguments pertaining to the deterioration of the applicant’s health were again dismissed as unfounded. The detention order of 22 August 2011 was appealed against and upheld by the Novgorod Regional Court on 30 September 2011.

In the meantime, on 19 September 2011 the applicant was served with the amended version of the bill of indictment.

B.  Quality of medical care afforded to the applicant

The applicant provided the Court with his medical history, including expert reports and medical certificates, showing that he suffers from coronary disease accompanied by severe stenocardia, arterial hypertension, blood circulatory deficiency, blood supply disturbance of the brain, chronic encephalopathy and condition after ischemic stroke. A report produced by Mr B., a doctor from the St. Petersburg Medical Academy, described the applicant’s condition as a very serious one with the unfavourable prognosis of the development of further complications of the coronary disease, including the risk of acute myocardial infarction. The doctor recommended to place the applicant under the permanent dynamic medical supervision, including regular examinations by a cardiologist, and to assign him adequate therapy. Mr B. consulted the applicant’s medical file on a number of occasions in November and December 2010, having each time recorded a negative change in the applicant’s condition.

The applicant also submitted a letter of 1 November 2010 from a deputy head of detention facility no. 5 informing the lawyers of impossibility to perform a medical examination of the applicant to determine the compatibility of the detention conditions with his state of health.

It appears that the applicant remained in the prison hospital between 30 October 2010 and late February 2011.

On 4 February 2011 the director of the Gaaza prison hospital dismissed the applicant’s lawyers’ request for a medical examination of the applicant to identify whether his health was compatible with the conditions of the detention facility. The director’s report, in so far as relevant, read as follows:

“[The applicant] was diagnosed with:

coronary disease; atherosclerosis of coronary and cerebral arteries; atherosclerotic cardiosclerosis; stenocardia...; essential hypertension of the third degree; arterial hypertension of the third degree... condition following the stent placement to the circumflex branch of the left coronary artery in 2010; cerebrovascular disease; consequences of the acute blood supply disturbance of the brain in 2009 in the form of the left-sided hemiparesis; encephalopathy of the second or third degree.

It follows that the [applicant’s] diagnosis does not fall into the list of severe illnesses which prevent detention of suspects or accused as established by the Government’s Decree no. 3 of 14 January 2011 ‘On Medical Examinations of Suspects and Accused of Criminal offence’.”

However, on 16 February 2011, on an order from the head of the St. Petersburg and Leningrad Region Service of Execution of Sentences (hereinafter – the Execution Service), the applicant was subjected to a medical examination in the presence of a member of St. Petersburg Public Review Board in the Sphere of Human Rights Protection, an assistant to the head of the Execution Service supervising human rights matters in detention facilities, the head of detention facility no. 5, doctors from the prison hospital, doctor B. and the applicant’s lawyers.

The relevant part of the expert report issued upon the medical examination of the applicant on 16 February 2011 read as follows:

“Following the medical examination the medical commission established that [the applicant] suffers from a chronic heart illness with blood circulatory deficiency, complications and permanent impairments of the body functions leading to the substantial limits on vital functions and requiring lengthy treatment in the conditions of a specialised cardiologic medical facility. The mentioned form of the illness is included in the list of severe illnesses which prevent detention of suspects or accused of criminal offences”.

On 25 August 2011 the applicant was sent to the Mariinskiy hospital in St. Petersburg to undergo a coronary arteriography. In the hospital the applicant was examined by a heart surgeon and an X-ray surgeon who gave their recommendations. On the following day he was sent back to the prison hospital.

On 6 September 2011 the applicant was examined by a medical commission comprising the vice-chancellor of the St. Petersburg Medical Academy, the director of the clinics belonging to the Academy, a deputy head of the therapeutic department in Academy, a leading cardiologist of the Academy, the head of the second cardiologic department of the Academy, the head of the X-ray department, the head of the neurologic department and the applicant’s attending doctor. The commission concluded that the applicant’s illness was not included in the list of severe illness precluding detention and recommended a surgery in respect of revasculised myocardium and a heavy drug regimen.

In the late evening on 14 September 2011 an ambulance was called to the applicant who was, at the time, kept in detention facility no. 5. Emergency doctors diagnosed him with coronary disease, aterosclerotic cardiosclerosis, essential hypertension of the third degree and cerebral claudication of the second degree. Having provided the applicant with urgent medical assistance, the emergency doctors left the detention facilities with assurances that the applicant would remain in the medical unit of the detention facility.

In the morning on 20 September 2011 an investigator summoned the applicant for an interview. The applicant did not feel well, complained about severe pain, fatigue, high tension, dizziness and short-term loss of consciousness and asked to call a doctor. In view of the doctor’s failure to appear for an hour, the applicant’s lawyer wrote a note to the head of the detention facility seeking provision of the urgent medical services to the applicant.

Three days later the applicant’s lawyers received a medical report issued on 13 September 2011 by the acting head of the Mariinskiy hospital and the two doctors from the therapeutic department of the hospital. According to the report, on 25 August 2011 the applicant underwent a diagnostic coronary arteriography, having been diagnosed with multifocal lesions of the coronary channel. He had also been examined by a heart surgeon. On 7 and 8 August 2011 the applicant was submitted to additional examinations in the St. Petersburg Medical Academy. The general conclusion was that the applicant needs lengthy treatment in the conditions of specialised hospital having resources to provide “high-tech medical assistance” including provision of cardio- and neurosurgical therapy “within the shortest possible term”. The doctors also noted that the applicant was under a high risk of developing acute myocardial infarction and of negative outcome of the main illness, including death.

Another record of 14 September 2011 contained a more detailed analysis of the applicant’s condition performed by the doctors from the Medical Academy. They recommended performing a surgery to address the applicant’s revasculised myocardium. The same record also showed that a commission comprising prison doctors examined the applicant on 13 September 2011 and recommended his transfer back to the detention facility for outpatient treatment.

Additional records and certificates issued by various doctors from civilian hospital recommended to stay the applicant’s participation in the criminal proceedings in view of his extremely fragile health and the use of sedative medicines influencing his physical and mental condition. They insisted that the applicant’s condition was prone to deteriorate under stress, including by leading to the applicant’s death.

In October 2011 the applicant’s lawyer sent a complaint to the head of the Federal Service for Execution of Sentences, seeking the applicant’s transfer to the prison hospital. They argued that detention facility no. 5 was not equipped to provide the applicant with requisite medical care, that prison doctors do not have adequate qualifications, that emergency doctors were not called to the facility and that the applicant was forced to participate in investigative actions, despite his extremely poor health. Similar complaints were sent to various prosecution officials.

On 23 November 2001 the applicant was again transferred to the Gaaza prison hospital for treatment.

The applicant’s numerous complaints to investigating and prosecution officials about the unlawfulness of his detention and absence of adequate medical assistance for his grave condition were unsuccessful.

COMPLAINTS

1.  In the application form lodged on 25 May 2011, the applicant complained:

- under Article 3 of the Convention that he had been served with the bill of indictment while being under the influence of sedatives and following his immediate release from the resuscitation unit of the hospital

- under Article 5 § 1 of the Convention that his detention following the extradition to the Russian Federation had been unlawful, given that the decision to arrest him had not been served properly on the Armenian authorities, the warrant for his arrest had been issued in violation of legal norms and by a non-judicial official and the authorities had erred in calculation of the period of his detention;

- under Article 5 § 3 of the Convention that the period of his detention is excessive and unreasonable, in view of the authorities’ refusal to take account of his health problems;

- under Article 5 § 4 of the Convention that the appeal courts, while dealing with the detention issued, had not examined thoroughly the grounds of his appeal statements;

- under Article 13 of the Convention that he did not have an effective remedy for his complaints about the unlawful detention.

2.  In the application form lodged with the Court on 14 October 2011 the applicant further complained:

- under Article 5 §§ 1, 3 and 4 of the Convention that his detention following another extension on 22 August 2011 was unlawful in view of various procedural violations committed by the domestic courts and incorrect application of the substantive legal norms;

- under Article 13 of the Convention that the Regional Court had not corrected the defects of the detention order of 22 August 2011, that it took more than a month for the appeal against the detention order to be examined, and that his detention is excessively long;

The applicant again repeated his complaint under Article 3 alleging that his life and limb were under serious risk given that he is not provided with medical assistance and not admitted to a prison hospital, despite recommendations to that effect by the civilian medical specialist and that he is taken to investigative actions in an extremely serious condition.

3.  The application form lodged on 5 December 2011 was entirely devoted to the applicant’s grievances of rapidly deteriorating health and lack or ineffectiveness of medical assistance provided to him in detention.

QUESTIONS TO THE PARTIES

1.  Taking into account the applicant’s medical history, in particular, his suffering from a number of serious illnesses, including a heart disease, have the Government met their obligation to ensure that the applicant’s health and well-being are being 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), as required by Article 3 of the Convention, in the present case. Did the applicant’s state of health warrant his permanent detention in a prison hospital? If so, what were the reasons calling for his detention in an ordinary detention facility? Were medical personnel of detention facility no. 5 licensed to provide medical assistance of the type required by the applicant?

2.  The Government are requested to produce a typed copy of the applicant’s complete medical record, drawn up after his arrest, including records of his medical examinations, issued medical recommendations, prescriptions of drug regimens, and medical charts showing compliance with drug regimens and prescribed medical tests and procedures.

3.  Was the length of the applicant’s detention on remand in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular, were the domestic courts’ decisions extending the applicant’s detention founded on “relevant and sufficient” reasons and were the proceedings conducted with a “special diligence” (see Olstowski v. Poland, no. 34052/96, § 78, 15 November 2001, and Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001)?

4.  Was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention? In particular, did the length of the proceedings by which the applicant sought to challenge the lawfulness of his detention extended on 22 August 2011, comply with the “speed” requirement of Article 5 § 4 of the Convention?