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Chamber judgment - Popov v. Russia

The European Court of Human Rights has today notified in writing its Chamber judgment¹ in the case of Popov v. Russia (application no. 26853/04).

The Court held, unanimously, that there had been:

· a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights in respect of conditions of detention and lack of adequate medical assistance in remand prison SIZO 77/1 in Moscow;

· a violation of Article 3 of the Convention in respect of conditions of detention in disciplinary cells and lack of adequate medical assistance in the YaCh-91/5 prison in Sarapul;

· a violation of Article 6 § 3 (d) (right to obtain attendance and examination of witnesses) in conjunction with Article 6 § 1 (right to a fair trial) in that the domestic courts failed to examine defence witnesses Mrs R. and Mr Kh.;

· no violation of Article 6 § 2 (presumption of innocence) in respect of the alleged defects of the bill of indictment;

· no violation of Article 6 § 1 in respect of the use of the identification reports;

· no violation of Article 6 § 3 (c) (right to legal assistance of own choosing) in conjunction with Article 6 § 1 in that the domestic courts refused the motion to admit the applicant’s uncle to participate in the proceedings as his representative;

· a failure by the State to fulfil its obligation under Article 34 (right of individual petition) not to hinder the effective exercise of the right of individual petition.

Under Article 41 (just satisfaction), the Court awarded the applicant 25,000 euros (EUR) for non-pecuniary damage and EUR 3,285 for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicant, Mikhail Yevgenyevich Popov, is a Russian national who was born in 1978 and is currently serving a prison sentence in the YaCh-91/5 Prison in Sarapul (Russia).

./..

On 14 May 2002 the applicant was taken in for questioning in the context of a murder enquiry. He then took part in an identification parade where he was identified by two of four schoolboys who had not been eyewitnesses to the murder, but had, on the day of the murder, seen two young men fighting and had subsequently learned that one of them had been found dead. One of the boys later submitted that he could not remember what the offender had looked like, the two others did not recognise him at all.

The applicant’s flat was searched and a number of personal items were seized such as his desktop PC, diskettes, mobile phone and some clothes. On 24 May 2002 he was charged with murder and transferred the next day to remand prison SIZO 77/1 in Moscow.

In June 2002 the applicant’s lawyer filed a complaint with the prosecutor concerning the conduct of the investigation. He alleged, among other things, that the identification parades had been in breach of procedural requirements and that no steps had been taken to verify the applicant’s alibi. The Prosecutor’s allowed the applicant’s representative motion to have examined as witnesses Mrs R. the applicant’s neighbour, and Mr Kh., a carpenter working at his flat. Their testimonies, however, were never heard.

In January 2003 the Prosecutor drew up a bill of indictment and referred the case to court. The bill of indictment enumerated the items of evidence but contained no clarification as to their relevance.

At hearing held in February 2003, Preobrazhenskiy District Court refused leave for the applicant’s uncle to participate in the proceedings as his representative since he was already represented by a lawyer.

On 10 September 2003 the applicant was convicted of murder and sentenced to ten years’ imprisonment. Apart from the conflicting account given by the schoolboys, the court relied on other evidence such as the victim’s post-mortem reports, crime scene reports, inspection reports concerning the victim’s computer and diskettes and inspection reports concerning the applicant’s personal items and references from Internet providers. The court however gave no explanation as to how those items proved the applicant’s guilt. The court did not establish the reason for the alleged quarrel, nor did it account for the murder weapon. The court dismissed the applicant’s motion to exclude the reports of the identification parades as inadmissible evidence having found that they had been conducted in accordance with procedural rules. That judgment was upheld by the Moscow City Court.

Since 1994 the applicant had been suffering from cancer of the urinary bladder. In 1999 he underwent a resection of the cancerous tumour and subsequent chemotherapy. Despite the operation, his condition required permanent medical supervision and specialised treatment.

Between 24 May 2002 and 15 February 2004 the applicant was detained in remand prison SIZO 77/1 in Moscow. While he was in the medical unit there, it was recommended that he be examined by an uro-oncologist and undergo a cystoscopy. The examination was scheduled a number of times but did not take place because the applicant had to attend court hearings that coincided with the medical appointments. The applicant was released on 21 March 2003 without any examination having been conducted.

On 15 August 2003 the applicant was examined by a urologist. On a number of occasions the prison doctors consulted the applicant’s uro-oncologist, Dr M., by telephone. However, according to Dr M. he was provided with incomplete information concerning the applicant’s condition. In particular, he was not provided with the information concerning the neoplasm detected by the ultrasound scan.

From 15 February to 18 March 2004 the applicant was held in YaCh-91/5 prison in Sarapul. Owing to the constant pain in his loins and stomach he refused to perform certain compulsory work in the prison and consequently was kept in various disciplinary cells. While he was in the prison he underwent certain laboratory tests which were apparently blood and urine tests and an ultrasound scan. On 1 September 2005, under Rule 39 of the Rules of Court, the Court indicated to the Government that they should secure an independent medical examination of the applicant in a specialised uro-oncological institution. On 16 September 2005 the applicant was examined by an uro-oncologist, Dr K., and underwent a cystoscopy. He was recommended dispensary supervision and a cystoscopy once a year.

The conditions of the applicant’s detention in both establishments, which the applicant described as appalling were disputed among the parties. In particular the applicant described unhygienic conditions and overcrowded cells. He alleged in particular that the cells were ill-ventilated and damp. They were very hot in the summer and very cold in the winter. Some of the cells were overrun with cockroaches, lice and bugs.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 14 July 2004 and was declared partly admissible on 22 June 2006.

Judgment was given by a Chamber of 7 judges, composed as follows:

Christos Rozakis (Greek), President,

Loukis Loucaides (Cypriot),

Françoise Tulkens (Belgian),

Nina Vaji? (Croatian),

Anatoli Kovler (Russian),

Elisabeth Steiner (Austrian),

Khanlar Hajiyev (Azerbaijani), judges,

and also Søren Nielsen, Section Registrar.

• 3. 

  Summary of the judgment²

Complaints

The applicant complained in particular about the fairness of the proceedings, the conditions of his detention and the lack of medical assistance he was given whilst in detention. He relied notably on Articles 3, 6, and 34.

Decision of the Court

Article 3

Conditions of detention in SIZO 77/1 remand prison

Medical assistance

Having regard to the medical documents submitted to it, the Court concluded that the minimum scope of medical supervision required for the applicant’s condition included regular examinations by an uro-oncologist and a cystoscopy at least once a year. However, neither of these was carried out during the applicant’s detention which lasted one year and nine months. The Court therefore considered that the applicant had not been provided with the medical assistance required for his condition.

In addition, it noted that Dr M. had not been provided with the information concerning the neoplasm detected by the ultrasound scan which, in the Court’s view, made it impossible for him to make an accurate diagnosis of the applicant’s condition and recommend appropriate treatment.

The Court noted that since his operation in 1994 the applicant had been well informed about his medical condition and the risks associated with it. He knew that in case of further development of the cancer, any delay in diagnosis could have fatal consequences as even surgical treatment would no longer be possible. In the Court’s view, this must have caused him considerable anxiety, especially as he was aware of a neoplasm in his prostate detected by an ultrasound scan and could not have recourse to a qualified specialist for a conclusive diagnosis.

Material conditions of detention

Both parties agreed that the cells in which the applicant was detained were overpopulated. From the figures submitted by the Government it appeared that for almost a year and a half of the applicant’s detention, excluding the periods when the applicant was placed in the medical unit, at any given time there was 0.9 to 2.34 sq. m of space per inmate in his cell. It was also not disputed that the applicant was confined to his cell for more than 23 hours a day.

The fact that the applicant was obliged to live, sleep, and use the toilet in the same cell with so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and arouse in him the feelings of fear, anguish and inferiority capable of humiliating and debasing him.

Having regard to the circumstance of the case, the Court found that the applicant’s conditions of detention combined with the length of time for which he was held and his state of health, exacerbated by the failure to provide him with adequate medical assistance, amounted to inhuman and degrading treatment and held unanimously that there had been a violation of Article 3.

The applicant’s complaint regarding ill treatment was rejected as manifestly ill-founded.

Conditions of detention in YACH-91/5 prison

Medical assistance

The Court observes that the applicant was examined by an uro-oncologist and underwent a cystoscopy a year and a half after his admission to the prison and only after such an examination was ordered by the Court under Rule 39. Furthermore, from the applicant’s medical file it should have been clear to the prison doctors that the applicant had not undergone the required examination for the preceding one year and nine months of his detention in the remand prison. That should have prompted the prison authorities to make adequate medical arrangements without undue delay. The Court therefore considered that the applicant was not provided with the medical assistance required for his condition.

Material conditions of detention

From the information submitted by the Government, the applicant spent over a month of his detention in disciplinary cells which measured from 2.03 sq. m to 3 sq. The cells were equipped in particular with collapsible bunk beds and two narrow benches without backs. The Court observed that since the bunk beds were only unfolded for seven hours a day, the applicant, who regularly complained about pain in his loins and was diagnosed by the prison doctors as having a number of urological diseases, had to remain in his cell for 23 hours a day, out of which for 16 hours he was practically confined to a narrow bench with no back.

The Court found that the applicant’s conditions of detention in the disciplinary cells, combined with the time he spent therein and his physical condition, exacerbated by the failure to provide him with the requisite medical assistance for his condition, amounted to inhuman and degrading treatment. Accordingly, the Court found unanimously that there had been a violation of Article 3.

Article 6

The Court noted that in refusing to examine defence witnesses, Mrs R. and Mr Kh. the trial court did not consider whether their statements could have been important for the examination of the case. However, from the fact that the defence’s previous motions to have them examined were formally granted a number of times both during the preliminary investigation and the court proceedings, it followed that the domestic authorities agreed that their statements could have been relevant. Taking into account that the applicant’s conviction was founded upon conflicting evidence against him, the Court found that the domestic courts’ refusal to examine the defence witnesses without any regard to the relevance of their statements led to a limitation of the defence rights incompatible with the guarantees of a fair trial enshrined in Article 6. The Court therefore held unanimously that there had been a violation of Article 6 § 3 (d) in conjunction with Article 6 § 1.

The Court held unanimously that there had been no violation of Article 6 concerning the applicant’s other complaints under that head.

Article 34

The Court reiterated that it was of the utmost importance that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints.

The Court noted that the applicant was contacted a number of times by State officials with regard to his complaints concerning various aspects of the conditions of his detention in YaCh-91/5 prison and his allegations of having received threats from the officials of the prison administration. The Court found it unacceptable that the applicant was contacted by officials of the very same prison administration and that such contacts, moreover, occurred repeatedly. The Court considered that the applicant must have felt intimidated as a result of those contacts, especially as he was detained and would have to remain in the prison for a lengthy period, which might give rise to a legitimate fear of reprisals. In the Court’s view, such contacts constituted illicit pressure which amounted to undue interference with the applicant’s right of individual petition. It therefore held unanimously that the Russian Government had failed to comply with its obligations under Article 34 not to hinder the effective exercise of the right of individual petition.

In view of that finding the Court considered it unnecessary to examine separately the applicant’s complain regarding the censorship of his correspondence with his representative.

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.