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FIRST SECTION

Application no. 7653/06
M.M.
against Russia

lodged on 26 January 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr M.M., is a Russian national who was born in 1984 and is serving a sentence of imprisonment in the Tomsk Region. His application was lodged on 26 January 2006.[1]

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

A.  Criminal proceedings against the applicant

On 6 January 2005 Mr M.D. was arrested and taken to a police station. Allegedly, police officers threatened him with murder and ill-treatment, if he refused to make a confession. He was intimidated. He made, in the presence of counsel, a written statement confessing to a murder. On 7 January 2005 an investigator compiled an arrest record.

On 30 September 2005 another investigator issued a formal decision confirming that the real name of Mr M.D. is M.M.

On 12 March 2007 the Verkh-Isetskiy District Court of Yekaterinburg convicted the applicant of murder and sentenced him to ten years’ imprisonment. On 6 June 2007 the Sverdlovsk Regional Court upheld the judgment.

B.  Access to the criminal case file

In the meantime, on 4 April 2005 the applicant was tested HIV-positive.

In November 2005 deputy district prosecutor Z. granted to Ms G., the murdered victim’s sister, access to the criminal case concerning the criminal charges against the applicant (see above).

At a trial hearing on 30 August 2006 Ms G. was granted victim status in the criminal case and confirmed that in November 2005 she had had access to the file, which contained information concerning the applicant’s HIV status. According to the applicant, G. subsequently disclosed the applicant’s HIV status to her neighbours.

Between September 2006 and 2009 the applicant unsuccessfully sought institution of criminal proceedings against Z. and G. for breaching confidentiality of the medical information. A preliminary criminal inquiry was opened and discontinued on numerous occasions.

Most recently, on 9 February 2008 the competent authority issued a refusal to institute criminal proceedings. On 25 November 2008 the Verkh-Isetskiy District Court of Yekaterinburg refused to carry out judicial review of this refusal. The regional court considered that the applicant was entitled to judicial review and ordered the District Court to re-examine the issue. In the resumed proceedings, on 13 February 2009 the District Court noted that the applicant no longer wished to pursue the case and discontinued it. According to the applicant, by that time the limitation period for engaging criminal liability had already expired.

C.  Conditions of detention

Between 17 January 2005 and July 2007 the applicant was kept in Yekaterinburg remand centre no. 66/1. After his arrival he was placed in cell no. 301, measuring 20 square metres and accommodating five persons. This cell had no window; the temperature in the cell was around +2 Celsius. There was no bed or bedding. The toilet was not functioning and was not separated from the main area.

On 18 January 2005 the applicant was transferred to cell no. 625, which measured 20 square metres and had six beds, while it actually accommodated 17 persons. The toilet was not separated from the main area.

From 19 January to 4 April 2005 the applicant was in cell no. 125, which measured 4 or 7 square metres and accommodated four detainees (or up to six persons, according to the applicant’s amended description).

From 4 April to 18 May 2005 the applicant was kept in cell no. 204, which measured 20 square metres, had six beds but accommodated 23-28 persons.

From 18 May to 2 June 2005 the applicant was admitted to a hospital. It appears that the material conditions of confinement there were acceptable. However, allegedly, between 24 May and 1 June 2005 he was ill-treated by medical assistants (also convicts) who tried, at the instigation of police officers, to extract a confession from the applicant.

After his return to the remand centre, the applicant was placed in cell no. 205, measuring 20 square metres and accommodating up to 25 persons for only 16 beds.

From 11 July 2005 he was in cell no. 117 measuring 4 square metres and accommodating four detainees.

Furthermore, the applicant provides a detailed account of the conditions of his detention between July 2005 and July 2007, also in cramped or indecent conditions and, at times, without possibility to have an individual bed.

Between 2005 and 2009 the applicant lodged numerous complaints in relation to the conditions of detention. For instance, on 15 February 2006 the Prison Department of the Sverdlovsk Region dismissed his request, indicating that the actual number of detainees in the remand centre exceeded the design capacity of this detention facility. By a letter of 13 March 2006 the administration of the remand centre informed the applicant that the actual capacity of cells was such as to afford 2.5 square metres per detainee, which was a temporary measure related to the overpopulation problem.

By a letter of 2 October 2008 the Sverdlovsk Prosecutor’s Office supervising prisons confirmed that the applicants had been afforded between 0.9 and 3.8 square metres of the cell space.

By a letter of 2 December 2008 the Prosecutor’s Office of the Sverdlovsk Region informed the applicant that after an inspection it could be not confirmed that the cell toilets were not separated from the main area.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he confessed under threats in January 2005 and was ill-treated in May 2005. He also complains about conditions of detention in the remand centre and that he had no effective remedy at the national level.

The applicant complains under Article 5 of the Convention that his detention in December 2005-January 2006 was unlawful.

The applicant complains under Article 6 of the Convention that he confessed under duress; legal-aid lawyers were inefficient at the trial; the trial judge interviewed witnesses and read out the bill of indictment; he could not examine certain prosecution witnesses and one defence witness.

Lastly, the applicant complains under Articles 6, 8 and 13 of the Convention that his HIV status was disclosed to a third person; that this person disseminated this confidential information to others; that the domestic inquiry took too long and that he had no effective remedy at the national level.

QUESTIONS TO THE PARTIES

1.  Were the conditions of the applicant’s detention in Yekaterinburg remand centre no. 66/1 in 2005-2007 compatible with Article 3 of the Convention?

2.  Can the applicant claim to be a victim of the alleged violation under Articles 6 of the Convention as regards the length of the proceedings concerning his complaints against G. and Z. (see, for comparison, Bíro v. Slovakia, no. 57678/00, §§ 37-47, 27 June 2006, and Volchkov v. Russia, no. 45196/04, § 42, 14 October 2010)? If yes, what is the period to be taken into account? Was there a violation of the “reasonable time” requirement under Article 6 § 1 of the Convention?

3.  Was there a violation of Article 8 of the Convention on account of the disclosure of the applicant’s HIV status to Ms G. in the criminal proceedings against him (see, for comparison, Z v. Finland, 25 February 1997, § 70 et seq., Reports of Judgments and Decisions 1997-I)? Did the domestic law afford appropriate safeguards to prevent any such disclosure? Having regard to the alleged dissemination of the above information to third persons by Ms G., did Article 8 of the Convention require positive measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves?

4.  Did the applicant have at his disposal an effective domestic remedy for his above complaints under Articles 3 and 8 of the Convention, as required by its Article 13 (cf. Armoniene v. Lithuania, no. 36919/02, § 43, 25 November 2008)?