LEBEDEV proti Rusku

FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4493/04
by Platon Leonidovich LEBEDEV
against Russia

The European Court of Human Rights (First Section), sitting on 18 May 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 22 January 2004,

Having regard to the decision to grant to the application priority under Rule 41 of the Rules of Court,

Having regard to the factual information submitted by the Government and the comments in reply submitted by the applicant,

Having regard to the partial decision of 25 November 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Platon Leonidovich Lebedev, is a Russian national, who was born in 1956 and lives in Moscow. He is represented before the Court by Ms Y. Liptser, Mr Y. Baru, lawyers practising in Moscow,
Mr W. Peukert, a lawyer practising in Strasbourg, and Messrs Amsterdam and Peroff, lawyers practising in Toronto. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. Detention of the applicant

(a) The applicant’s arrest

At the moment of the events described below the applicant was one of the leading executives of Yukos, a large oil company. On 20 June 2003 a public prosecutor opened an investigation on suspicion of fraud committed in the course of privatisation of a State-owned company in 1994 by a group of top managers of Yukos and affiliated companies. In the following months some of them were arrested and charged, including Mr Khodorkovskiy, the former head of Yukos; others, in fear of prosecution, have left Russia.

On 2 July 2003 the applicant was admitted to a hospital in connection with his chronic diseases, such as vegetative-vascular dystonia, cardiac arrhythmia, hypertension and hepatitis B. As follows from a medical report, given in July 2003 by the applicant’s doctor, the applicant suffered from chronic hepatitis which might cause internal bleeding and death.

On the same day, while in the hospital, the applicant was arrested by the prosecuting authorities as a suspect in the above criminal case. He was conveyed to the pre-trial detention centre.

On 3 July 2003 the prosecution charged the applicant and two other persons with fraud and non-compliance with a court order. The prosecution asserted that in 1994 the applicant had deceived the State: he had bought a stake in a large mining company at a privatisation tender, but had not made a return investment in the company even though it was the winning bidder’s obligation. Furthermore, later the applicant had disobeyed a judgment ordering him to return the stake in the company to the State.

The applicant’s lawyers objected to the arrest and maintained that the applicant’s state of health was incompatible with the detention. They requested the prosecution authorities to carry out a thorough medical examination of the applicant.

On the same day, 3 July 2003, the prosecution requested the Basmannyi District Court of Moscow to detain the applicant on remand.

(b) Initial detention order

The applicant requested the court to adjourn the hearing in order to allow his lawyers to participate in it. The court dismissed this request on the ground that the lawyers had been properly informed about the detention hearing but failed to appear. The court decided to hear the detention request in private.

According to the applicant’s lawyers, they learned about the time of the detention hearing less than two hours before its beginning. When they had come to the court, they could not participate in the hearing because the judge had locked the room and refused to open it.

Having heard the applicant and the prosecution, the court decided to detain the applicant. The court reasoned its decision as follows:

“...The court takes into account that [the applicant] is accused of moderately serious and serious offences punishable with over 2 years’ imprisonment. [Furthermore], the circumstances and the nature of the imputed offences, the information about [the applicant’s] personality and his social status give reasons to believe that if remained at large, [the applicant] may abscond from the investigation and trial given that, as established by the investigation, [he] committed the offences not accidentally but deliberately and on numerous occasions over a long period of time. [Besides], the persons, through whose assistance [the applicant] committed the offences, continue at present to depend on him financially and otherwise as employees of companies controlled by him. [In this connection], if remained at large, [the applicant] may induce them to forswear themselves or to avoid testifying, [he] may interfere with witnesses and other participants of the proceedings and otherwise interfere with the establishment of the truth. These circumstances and the evidence gathered in the file convince the court that if remained at large, [the applicant] may continue his criminal activity, destroy the evidence and otherwise hamper the proceedings. The fact that [the applicant] has a travel passport ... suggests that he ... may flee abroad from the investigation authorities and the court. The court also takes into account [the applicant’s] age, occupation, family status, his having three minor children and the condition of his health which ... permits him to participate in the investigation.

In view of the above, the court finds that there is no reason to apply to the applicant a precautionary measure less severe than detention...”

With regard to the absence of the lawyers from the hearing, the court noted as follows:

“The court finds unfounded and cannot accept [the applicant’s] motion to adjourn [the decision] until [his lawyers] may take part in the proceedings. The documents submitted by the investigating authorities prove that [the lawyers] have been informed about the time and place of the hearing in advance, namely at 2.52 p.m. on 3 July 2003 [they] were informed that at 4.30 p.m. on 3 July 2003 [the Basmannyi Court] would examine [the investigating officer’s request for detention order]. In reality, the hearing ... began at 5.50 p.m. on 3 July 2003, but [the lawyers] have still not arrived, nor have they presented valid reasons for their absence...”

The court decision did not specify the period of detention.

On 4 July 2003 the investigator dismissed the request for a medical examination of the applicant.

The defence appealed against the detention order, but on 23 July 2003 the Moscow City Court upheld it. The applicant’s lawyers were present at the appeal court hearing. In the hearing the prosecution submitted additional evidence in favour of the detention. The appeal court reasoned its decision as follows:

“[The prosecution has submitted] evidence that [the applicant] has three travel passports, that most of [his] money is [converted into] foreign currency and is deposited on foreign ... bank cards, that he has real estate abroad, and that his main business is located outside Russia. In the hearing [the applicant’s] lawyers did not contest this evidence. [This evidence], together with the fact that [the applicant] heads several commercial banks and maintains international links, supports the [first-instance] court’s conclusion that [the applicant], if he remains at large, may abscond from the investigation and trial, inuence ... witnesses, destroy evidence, and otherwise obstruct the proceedings....”

On 20 August 2003 the investigation ended. On 22 August 2003 the applicant and his lawyers began to study prosecution files.

(c) Extensions of detention on remand

The prosecution three times requested the Basmannyi Court to extend the applicant’s detention to let him study the prosecution files. On 28 August 2003 the court extended the detention until 30 October 2003. The defence lodge an appeal against this decision which was dismissed on 15 October 2003 by the Moscow City Court.

On 28 October 2003 the court extended the detention until 30 December 2003. The appeal of the defence against this detention order was dismissed on 23 December 2003 by the Moscow City Court.

On 26 December 2003 the court extended the detention until 30 March 2004. The court repeated the reasons for detention, formulated in the detention order of 3 July 2003. The hearing of 26 December 2003 was held in private.

On 30 December 2003 the applicant’s lawyer, and on 9 January 2004 the applicant himself, lodged summary appeals against the decision of
26 December 2003. According to the Government the record of the hearing of 26 December 2003 was delivered on 5 January 2004. The applicant asserted that the record was deposited with the registry of the Basmannyi District Court only three weeks after the hearing. On 22 January 2004 the court rejected the applicant’s lawyer’s comments on the record of the hearing. On 23 January 2004, the applicant’s lawyer, and on 5 February 2004 the applicant himself lodged reasoned appeals against the decision of 26 December 2003. On 9 February 2004 the Moscow City Court upheld the decision of 26 December 2003.

(d) The applicant’s detention pending trial

After the applicant had finished studying the prosecution files, on
26 March 2004 the prosecution sent the case to the Meshchanskiy District Court of Moscow for trial.

On 6 April 2004 the Meshchanskiy Court set a preliminary hearing for 15 April 2004 and decided that meanwhile the applicant should stay in detention. No reasons were given for this decision.

On 12 April 2004 the applicant’s lawyer lodged, by post, an appeal against this decision arguing that the court had failed to hear the applicant and to cite any reasons for the detention.

On 15 April 2004 the applicant’s lawyer asked the court to release the applicant because no court decision had sanctioned his detention from 30 March 2004, when the detention had expired, to 6 April 2004, when the court had accepted the case for trial. On the same day, 15 April 2004, the court rejected this request because the prosecution had submitted the case for trial in time, and because from that moment the court had had jurisdiction over the applicant (перечисление за судом). The court also decided that the applicant should stay in detention pending trial. In support of that decision the court relied on the reasons, stated in the detention orders of 2003.

On 22 April 2004 the Moscow City Court received the applicant lawyer’s appeal against the decision of 6 April 2004, sent by post. On 26 April 2004 the court sent it to the prosecution for comment. On 20 May 2004 the court received the prosecution’s comments and the civil plaintiffs’ comments and set a hearing for 27 May 2004. On 26 May 2004 the applicant’s lawyer lodged an additional appeal. The court sent the additional appeal to the prosecution for comment. Having received the comments, the court set a hearing for 9 June 2004.

On 8 June 2004 the Meshchanskiy Court conducted a hearing within the criminal case of Mr Khodorkovskiy and Mr Krainev, the applicant’s co-defendants. In the course of this hearing the court joined the applicant’s case to his co-defendants’ cases and confirmed that the applicant should stay in detention. The applicant and his lawyers were absent from this hearing.

On 9 June 2004 the Moscow City Court rejected the appeal against the decision of 6 April 2004.

On 29 July 2004 the Moscow City Court rejected the appeal against the decision of 8 June 2004. The applicant’s lawyers participated in the appeal hearing, but the applicant was absent. The City Court held that the Meshchanskiy District Court’s decision extending the detention had been in conformity with the provisions of the Code of Criminal Procedure and had been based on the materials of the case-file. Further, the City Court obtained a medical certificate concerning Mr Lebedev from the prison doctor, who described the applicant’s state of health as “satisfactory”. The court of appeal concluded that that the applicant should remain in detention pending trial.

On several occasions in the following months the applicant’s detention was prolonged by Meshchanskiy District Court pending trial.

On 16 May 2005 the Meshchanskiy District Court convicted the applicant and sentenced him to nine years’ imprisonment.

2. The applicant’s lawyers’ visits to prison

On 4 December 2003 and 22 March 2004 Mr Baru, the applicant’s lawyer, visited the applicant in prison. During the visit the applicant gave him notes concerning the trial. As Mr Baru was leaving, guards stopped him and con­fiscated the notes. Later the prosecution returned the notes.

On 22 March 2004 Ms Liptser, the applicant’s other lawyer, was appointed to represent the applicant before the Court. On 23 March 2004 she tried to visit the applicant in prison. The prison administration refused the visit because Ms Liptser had no authority to represent the applicant before the domestic courts. On 12 April 2004 Ms Liptser received this authority. She complained about this fact to the Preobrazhenskiy District Court, but on 26 April 2004 the court declared itself incompetent to examine this complaint.

3. The applicant’s health

(a) The applicant’s account

Shortly before his arrest, on 30 June 2003 a gastroenterologist of “On Clinic” Medical Centres, a private clinic in Moscow, diagnosed the applicant as follows:

“Based on the patient’s complaints, case history and physical examination data, [it is] supposed that [the applicant] has chronic hepatitis with possible transformation into cirrhosis. To make a more accurate diagnosis, [it is recommended that the applicant undergo] in-patient examination, including gastroscopy, hepatitis virus markers determination, biochemical and clinical blood tests with hæmocoagulation determination, ultrasound examination of abdominal cavity organs.

Without complete examination of [the applicant], it is rather difficult to determine the stage of the disease. If chronic hepatitis has presently transformed into cirrhosis accompanied by portal hypertension with the formation of varicose œsophageal veins, the development of œsophageal hæmorrhage may lead to irreversible effect up to fatality.”

At the time of his arrest on 2 July 2003 the applicant was receiving inpatient treatment at the Vishnevskiy Military Hospital. When the police came to arrest the applicant, doctors briey checked his health and certified that his state of health did not prevent him from participating in the proceedings.

On 2 July 2003 the applicant was put in Lefortovo remand prison. The applicant refused treatment by prison doctors because he mistrusted them.

The applicant’s lawyers several times asked the prosecution to let independent doctors examine the applicant and to find out whether he was fit to stand the investigation and trial. The prosecution rejected these requests because according to prison doctors and the doctors of the Vishnevskiy Military Hospital, the applicant’s health was satisfactory, and because it was constantly monitored.

On 21 October 2003 the applicant was transferred to IZ–77/1, a remand prison commonly known as “Matrosskaya Tishina”. Conditions in this prison were, in the applicant’s view, unsatisfactory. Outdoor activities (circuit walks in the courtyard) were available in theory, but not in practice: the applicant had to refuse them because he felt weak and because he was busy reading the prosecution files and visiting hearings. Food was not dietary. The prison administration failed to supply a calculator and a magnifying glass to help the applicant read the files. Since the applicant had to share his cell with others, he could neither work nor rest. The applicant could catch a dangerous disease because his cell was meant for infectious prisoners.

On 26 December 2003, when the applicant was in a court hearing, he had an acute high blood pressure, and the judge had to call an ambulance.

On 2 March 2004 a panel of State doctors examined the applicant and prescribed treatment. Since the prison doctors had failed to follow this prescription, from 29 March 2004 the applicant refused further treatment.

On 30 March 2004 three doctors from the University of Toronto drafted a report based on the Russian doctors’ reports:

“[The applicant] is suffering from two identified life threatening illnesses:

1. Advanced hepatitis with evidence of possible cirrhosis (extensive destruction of the liver from fibrosis and degenerative changes), possible hepatic encephalopathy (... a complex syndrome characterized by disturbance in consciousness, behaviour, personality, uctuating neurological signs, a tremor...), and a documented previous gastrointestinal bleed;

...

2. Uncontrolled hypertension with evidence of possible stroke (a clot or bleed in the brain) or TIA (intermittent strokes), and possibly hypertensive encephalopathy...

[The applicant] is in imminent risk of irreparable life threatening:

1. Neurological (brain) damage from advanced live disease affecting his central nervous system and uncontrolled hypertension causing stroke and hypertensive encephalopathy;

2. Cardiovascular (heart) disease including heart attack, heart failure, and cardiac arrhythmia (electrical disturbance) from his uncontrolled and untreated hypertension;

3. Hepatic (liver) damage from cirrhosis of the liver, portal hypertension (hypertension affecting the venous blood system surrounding the liver and related organ systems), fulminate hepatitis (hepatitis that has spread to affect major organ systems in the body), and hepatic encephalopathy.

Each of these ... ailments alone, or in concert, is considered a clinically serious life threatening illness with an extremely high morbidity and mortality rate....”

On 7 July 2004 a doctor from the King’s College Hospital in London drafted a report based on the applicant’s case history and the Russian doctors’ reports:

“[T]here is sufficient evidence to presume that [the applicant’s] liver disease has not been properly examined, that it may be much more serious than diagnosed, and that a proper examination is only possible in a specialised medical centre.”

On 9 July 2004 a doctor from Temple Fortune Health Centre in London drafted a report based on the Russian doctors’ reports:

“[W]ithout further intervention:

1. It is very likely that the [applicant’s] ... liver disease will be progressive, have a poor prognosis, and lead to death.

2. It is very likely that the ... blood pressure will be progressive, have a poor prognosis, and lead to death.

3. It is very likely that the combination of both the ... liver disease together with ... blood pressure will be accelerated progression, have a poorer prognosis, and lead to early death.”

(b) The Government’s account

On 2 July 2003 doctors of the Vishnevskiy Military Hospital diagnosed the applicant with vegetovascular dystonia but found his condition satisfactory.

On 2 July 2003 the applicant was put in Lefortovo. The applicant’s cell measured 8.2 m² and housed two people. It had a refrigerator, a TV, a radio, natural and forced ventilation, natural and electric light, a partitioned toilet, running water, a bathroom shelf, a mirror, and a trash bin. The applicant had a bed, bedding, dishes, and means of hygiene. Daily he had three meals and an hour-long walk in daylight. Once a week he had a shower.

On his admission to Lefortovo the applicant did not complain about his health, and the prison doctor found him practically healthy. During his stay in this prison the applicant had a cardiogram, a chest x-ray, and blood tests. None of these tests revealed any abnormality. The applicant refused any medical treatment.

On 21 October 2003 the applicant was transferred to Matrosskaya Tishina. During his stay in this prison the applicant was detained in seven different cells that offered from 3.5 to 10.6 m² per person. The applicant had a bed, bedding, and dishes. Daily he had meals and an hour-long walk in daylight. Once a week he had a shower.

From 23 December 2003 to 18 February 2004 prison doctors, including a neuropathologist and an eye doctor, examined the applicant about 20 times. The applicant had two cardiograms, a chest x-ray, blood tests, urine tests, and three ultrasound tests. The doctors diagnosed him with hypertension and chronic hepatitis, but found his condition satisfactory. Except once, the doctors found that the applicant was fit for the hearings.

On 26 December 2003 when the applicant was in a court hearing, his health aggravated, but the accompanying prison doctor and an ambulance team quickly restored it.

On 2 March 2004 the applicant was examined by a panel of doctors composed of the Chief Physician of the Moscow Health Department, Deputy Medical Director of the Moscow Prisons Department, Healthcare Director of Matrosskaya Tishina, and an infectiologist. The panel found that:

“[The applicant] suffer[ed] neuroculatory dystonia of hypertensive type, chronic subacute hepatitis of non-complicated course, i.e. without transformation into cirrhosis and portal hypertension.”

During his stay at Matrosskaya Tishina, the applicant was never hospitalised because there was no need to. He refused treatment.

B. Relevant domestic law and practice

Code of Criminal Procedure of 2001 provides:

Article 108. Pre-trial detention

“1. Pre-trial detention as a measure of restraint shall be applied by a court only where it is impossible to apply a different, less severe, precautionary measure....

3. When the need arises to apply detention as a measure of restraint ... the investigating officer shall request the court accordingly....

4. [The request] shall be examined by a single judge of a district court ... with the participation of the suspect or the accused, the public prosecutor and the defender, if one takes part in the proceedings. [The request shall be examined] at the place of the preliminary investigation, or of the detention, within 8 hours of the receipt of the [request] to the court....”

Article 227. Judge’s powers in respect of a criminal case submitted for trial

“1. When a criminal case is submitted [to the court], the judge shall decide as follows: either

i) to forward the case to an [appropriate] jurisdiction; or,

ii) to hold a preliminary hearing; or,

iii) to hold a hearing.

2. The judge’s decision shall take the form of a resolution....

3. The decision shall be taken within 30 days of the submission of the case to the court. If the accused is detained, the judge shall take the decision within 14 days of the submission of the case to the court....”

Article 228. Points to be ascertained in connection with a criminal case submitted for trial

“Where a criminal case is submitted for trial, the judge shall ascertain the following points in respect of each accused:

i) whether the court is competent to deal with the case;

ii) whether copies of the indictment have been served;

iii) whether the measure of restraint should be lifted or changed;

iv) whether the motions filed should be granted....”

Article 255. Measures of restraint during trial

“1. During the trial the court may order, change, or lift a precautionary measure.

2. If the defendant has been detained before the trial, his detention may not exceed six months from the moment the court receives the case for trial to the moment the court delivers the sentence....”

On 22 March 2005 the Constitutional Court of the Russian Federation adopted Ruling no. 4-П on the applicant’s complaint about the de facto extension of his detention after the transmittal of the case-file from the prosecution authorities to the trial court.

The Court found that the provisions of the Code, challenged by the applicant, complied with the Constitution of the Russian Federation. However, their practical interpretation by the courts may have contradicted their constitutional meaning. In part 3.2. of the Ruling the Constitutional Court held:

“Second part of Article 22 of the Constitution of the Russian Federation provides that [...] the detention is permitted only on the basis of a court order [...]. Consequently, if the term of detention, as defined in the court order, expires, the court shall decide on the extension of the detention, otherwise the accused person should be released [...].

These rules are common for all stages of criminal proceedings, and also cover the transition from one stage to another. [...] The transition of the case to another stage does not automatically put an end to the measure of restraint applied at previous stages.

Therefore, when the case is transmitted by the prosecution to the trial court, the measure of restraint applied at the pre-trial stage [...] may continue to apply until the expiry of the term, for which it has been set in the respective court decision [imposing it] [...]

[Under to Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within 14 days, set a hearing and establish “whether the measure of restraint applied should be lifted or changed”. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, only until the end of the term, for which the measure of restraint has been set.

The prosecution, in its turn, while approving the bill of indictment and transferring the case-file to the court, should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [on further detention of the accused pending trial]. If by the moment of transferral of the case-file to the court this term has expired, or if it appears to be insufficient for allowing the judge to take a decision [on detention], the prosecutor, pursuant to Articles 108 and 109 of the Code of Criminal Proceedings, [should] request the court to extend the period of detention.”

Further in the Ruling the Constitutional Court held:

“Since the deprivation of liberty [...] is permissible only pursuant to a court decision, taken in a hearing [...] under the condition that a detainee has been provided an opportunity to get his arguments over to the court, the prohibition to issue a detention order [...] without a hearing should apply to all court decisions, whether they concern the initial imposition of this measure of restraint, or its confirmation.”

On 22 January 2004 the Constitutional Court delivered decision no. 66-O on a complaint about the Supreme Court’s refusal to permit a detainee to attend the appeal hearings on the issue of detention. It held:

“Article 376 of the Code of Criminal Procedure regulating the presence of a defendant remanded in custody before the appeal court... cannot be read as depriving the defendant held in custody... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms...”

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that it was inhuman and degrading to imprison him because he was seriously ill.

2. The applicant complained under Article 5 § 1 (c) of the Convention that from 31 March to 6 April 2004 his detention was not based on any court decision. The applicant likened his situation with the case of Baranowski (see Baranowski v. Poland, judgment of 28 March 2000, Reports of Judgments and Decisions 2000-III).

3. The applicant complained under Article 5 § 4 of the Convention that the Basmannyi Court’s hearings of 3 July and 26 December 2003 were not public.

4. The applicant complained under Article 5 § 4 of the Convention that his lawyers could not participate in the Basmannyi Court’s hearing of 3 July 2003.

5. The applicant complained under Article 5 § 4 of the Convention that it was not until 9 February 2004 that the Moscow City Court examined his appeal against the decision of 26 December 2003, and that it was not until 9 June 2004 that the Moscow City Court examined his appeal against the decision of 6 April 2004.

6. The applicant complained under Article 5 § 4 of the Convention that the Meshchanskiy Court had failed to call him to its hearing of 8 June 2004.

7. The applicant complained under Article 5 § 4 of the Convention that the Moscow City Court which examined his appeal against the detention order of 3 July 2003 was biased because despite its passive role of an arbiter, it reinforced the lower court’s reasons for the detention.

8. The applicant complained under Article 5 § 4 of the Convention that the decision of 26 December 2003 had failed to adduce valid reasons for the extension of his detention.

9. The applicant complained under Article 34 of the Convention that by searching his lawyers the authorities had hindered his right of individual petition to the Court

10. The applicant complained under Article 34 of the Convention about the authorities’ refusal to let Ms Liptser, one of his lawyers, to visit him in prison between 22 March and 12 April 2004.

THE LAW

A. Medical conditions of the applicant and his detention

1. The applicant complained under Article 3 of the Convention that it was inhuman and degrading to imprison him because he was seriously ill. As far as relevant, Article 3 reads:

“No one shall be subjected to ... inhuman or degrading treatment....”

The Government referred to their account of facts and argued that this complaint was manifestly ill-founded. The applicant was ill, but fit for the investigation and trial. The conditions of his detention were satisfactory; prison doctors constantly monitored his health. When detaining the applicant, the domestic courts had regard to his health and also found it satisfactory. The applicant’s doctors’ reports were hypothetical and mattered little. The applicant refused treatment himself.

The applicant referred to his account of facts and argued that this complaint was well-founded. He was too ill for the investigation and trial; if left in prison, he could even die. The medical examinations and treatment were a sham because the prison doctors were biased. Neglected by the doctors, he felt uncertain about his future and suffered more than an ordinary prisoner would.

The Court repeats that to fall under Article 3 of the Convention, ill-treatment must be at least marginally severe. This margin is relative and depends, for example, on the ill-treatment’s duration, on its physical and mental effects, and on the victim’s sex, age, and health (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, § 162). Detention that makes a person fall ill may amount to inhuman treatment (see B. v. Germany, no. 13047/87, Commission decision of 10 March 1988, Decisions and Reports (DR) 55, p. 271).

The Court also repeats that the lack of medical treatment in prison may raise an issue under Article 3. One must consider how ill the person is, what medical treatment he receives, and whether his condition allows detention (see Telecki v. Poland (dec.), no. 56552/00, ECHR 3 July 2003). Nevertheless, Article 3 does not oblige the State to release a prisoner or to transfer him to a civil hospital, even if his illness is particularly difficult to treat (see Nowojski v. Poland, no. 26756/95, Commission decision of
29 November 1995).

In the present case the parties disagree on the applicant’s state of health. The applicant’s doctors assert that he was too ill to stay in prison; the Government’s doctors assert that he was ill but moderately. Since the Court has no own medical expertise, it will consider only how conclusive the parties’ medical reports were.

As to the doctors relied upon by the applicant, the On Clinic Medical Centres did not diagnose the applicant resolutely. They only supposed the diagnoses, listed their possible complications, and recommended a full-scale hospital examination. In particular, the Court recalls that the report stated: “[It is] supposed that the patient has chronic hepatitis....” So did the King’s College Hospital: “[T]he ... disease has not been properly examined ... it may be much more serious...”, and the Temple Fortune Health Centre: “[I]t is very likely that the [diseases] will have a poorer prognosis....” This evidence is, in the Court’s view, too hypothetical to be conclusive.

The University of Toronto was more straightforward. This report stated that “[the applicant] is in imminent risk of irreparable life threatening [ailments].” However, the Court recalls that these overseas doctors never examined the applicant in person, for which reason their report cannot be regarded as conclusive either.

As to the doctors relied upon by the Government, they examined and tested the applicant in person on many occasions. For this reason, the Court considers that their conclusions are of a more accurate nature. The same applies to the doctors of the Vishnevskiy Military Hospital which also found the applicant’s health satisfactory.

In these circumstances, the Court finds it established that the applicant’s health allowed his detention. Although the applicant did suffer from hypertension and hepatitis, the prison doctors monitored his health. The applicant suffered from these illnesses before his detention, and the Court does not find it established that the detention as such was a circumstance aggravating his medical condition, nor that the medical examination and treatment, available to the applicant, were inadequate. Furthermore, the Court finds that the conditions of detention at Lefortovo and “Matrosskaya Tishina”, as described by the applicant, were of such a character that the applicant’s detention could not be considered as being contrary to Article 3 of the Convention (see, in contrast, Kalashnikov v. Russia, no. 47095/99,
§§ 92–103, ECHR 2002‑VI). To sum up, the situation complained of was not such as to disclose any appearance of a violation of Article 3 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. “Lawfulness” of the detention on remand

2. The applicant complained under Article 5 § 1 (c) of the Convention that between 31 March and 6 April 2004 his detention was not based on a court decision. As far as relevant, Article 5 reads:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or eeing after having done so...”

The Government argued that this complaint was manifestly ill-founded. Under Article 255 of the Code of Criminal Procedure, detention on remand remained in force pending trial. Hence, the effect of the Basmannyi Court’s decision of 26 December 2003 lasted until 6 April 2004.

The applicant argued that this complaint was well-founded. According to the Constitutional Court’s reading of Article 225, detention was to be based on a court decision always.

The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C. Conduct of the detention proceedings (complaints nos. 3 - 6)

3. The applicant complained under Article 5 § 4 of the Convention about a number of procedural defects in the proceedings concerning his detention on remand. In particular, the hearings before the Basmannyi Court were held in private, his lawyers could not participate in the Basmannyi Court’s hearing of 3 July 2003, it had taken the Moscow City Court too long to examine his appeals against the extensions of his detention, the Meshchanskiy Court had not called him to its hearing of 8 June 2004.

Article 5 § 4 reads:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The government’s submissions

First, the Government argued that this complaint was incompatible with the Convention because Article 5 § 4 did not apply to the hearings in question, and, moreover, the proceedings under Article 5 needed not offer the same level of guarantees as the proceedings under Article 6 of the Convention. They referred to the case Neumeister v. Austria (judgment of 27 June 1968, Series A no. 8, § 24), where the Court had held that “full written proceedings or an oral hearing of the parties in the examination of such remedies would be a source of delay which it is important to avoid in this field”.

Secondly, the applicant’s complaints were also manifestly ill-founded. As regards the lack of publicity, under domestic law the Basmannyi Court had the right to hold these hearings in private, because the lack of publicity did not prejudice the applicant’s defence, and because the applicant’s main trial was in any event public.

As regards the absence of the applicant from the hearing of 8 June 2004, the Government pointed out that the applicant had not been summoned to this hearing because it was conducted within the framework of a different case, namely the case of Mr Khodorkovskiy and Mr Krainev. However, since in the course of the pre-trial investigation the applicant and his co-defendants had requested that their cases be joined, on 8 June 2004 the court granted this motion. Under the Code of Criminal Procedure, the court, together with joining the cases, had to re-consider measures of restraint, applied to the accused. Therefore, on this day the court did not impose or prolong the detention but just confirmed its validity.

As to the appeal against the decision of 26 December 2003, the court examined it only four days after the applicant had lodged its final version. As to the appeal against the decision of 6 April 2004, it was the applicant’s lawyer who had caused the delay. She mailed the appeal instead of lodging it by hand and lodged an additional appeal the day before the first appeal was to be heard. The court had to send the additional appeal to the prosecution for comment, and this necessary formality prolonged the delay.

The applicant’s submissions

First, the applicant maintained that Article 5 § 4 was applicable to the proceedings at issue. In his words, the case-law of the Court has evolved since the Neumeister case. He referred to the Winterwerp v. the Netherlands (judgment of 24 October 1979, Series A no. 33, § 60) where the Court emphasised the following:

“The judicial proceedings referred to in Article 5 § 4 ... need not, it is true, always be attended by the same guarantees as those required under Article 6 para. 1 ... Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded "the fundamental guarantees of procedure applied in matters of deprivation of liberty"

In the later case-law the Court confirmed this approach. Thus, in Nikolov v. Bulgaria (no. 38884/97, § 97, 30 January 2003) and Migoń v. Poland (no. 24244/94, § 68, 25 June 2002) the Court found that the detention proceedings must adequately ensure “equality of arms” between the parties.

Secondly, the applicant argued that his complaints were well-founded. As regards the publicity of the detention hearings, it is a core principle of justice. Second, the court decided to hold these hearings in private without asking the parties and without citing any reasons.

As regards his absence from the hearing of 8 June 2004, the applicant maintained that the right to take part in the proceedings concerning the detention did not depend on the nature of the proceedings, as the Government suggested. He referred to the Ruling of the Constitutional Court of the Russian Federation of 22 March 2005, which held that the presence of a detainee at a hearing concerning his detention is required in all circumstances, irrespectively of whether the court was imposing, prolonging or confirming the lawfulness of the detention.

As to the appeal against the decision of 26 December 2003, it was lodged late because the district court had failed to issue the hearing record in time. As to the appeal against the decision of 6 April 2004, the Moscow City Court could have performed the necessary procedural formalities more speedily.

The Court’s assessment

In the Court’s opinion, the question whether and to what extent Article 5 § 4 is applicable to the detention proceedings at issue must be further examined together with the merits of the complaints under Article 5 of the Convention. Thus, the Court finds necessary to join the Government’s objection in this regard to the merits of the case.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

D. Other complaints under Article 5 § 4 of the Convention

4. The applicant complained under Article 5 § 4, cited above, that the Moscow City Court was biased because despite its assumed role of an arbiter it reinforced the Basmannyi Court’s detention order.

Even proceeding from the assumption that Article 5 § 4 applies to the proceedings at issue (see the Government’s assertion to the contrary above), the Court considers that the sole fact that the Moscow City Court adduced more arguments in favour of the applicant’s detention than the first instance court does not suggest that the Moscow City Court had preconceived ideas about the merits of the applicant’s situation. In fact, the additional reasons in favour of the detention came from the prosecution’s submission. The court let the applicant comment on the submission and assessed the parties’ arguments. By doing so the court did not assume an unusual role or give any other grounds to suspect it of impartiality, objective or subjective.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The applicant complained under Article 5 § 4 of the Convention that on 26 December 2003 had failed to adduce valid reasons for the extension of his detention.

The Court has earlier rejected the applicant’s complaint about the groundlessness of his detention (see Lebedev v. Russia (dec.), no. 4493/04, 25 November 2004). This complaint is essentially the same and must be rejected in accordance with Article 35 § 2 (b) of the Convention.

E. The lawyers’ visits to the prison

6. The applicant complained under Article 34 of the Convention that the authorities had hindered his right of individual petition to the Court by searching the applicant’s lawyer, Mr Baru, during his visit to the prison where the applicant had been detained. Article 34 reads:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government argued that this complaint was manifestly ill-founded. First, prison guards seized the notes from Mr Baru because under the prison rules a prisoner might communicate with the outside world only through the administration. Later the notes were returned. In any event, the notes did not concern the application to the Court. The applicant argued that this complaint was well-founded. Even though Mr Baru’s visit did not concern the application to the Court, the confiscation of the notes had been unlawful. The Court notes that the applicant has himself admitted that Mr Baru’s visits did not concern the proceedings before the Court. Therefore, the applicant’s complaint under Article 34 of the Convention on account of this fact is manifestly ill-founded and should be rejected under Article 35 § 3 of the Convention.

7. The applicant further complained about the refusal of the prison administration to let Ms. Liptser visit him in prison. He referred to Article 34, cited above.

According to the Government, under the prison rules a prisoner may meet only the lawyer appointed to defend him in the domestic criminal proceedings. When Ms Liptser wished to visit the applicant, she had not yet been appointed so her power of attorney was limited to the representation of the applicant before the European Court of Human Rights. Hence, the prison administration refused the visit lawfully.

The applicant maintained that by the time Ms Liptser wished to visit him in prison she had been appointed to represent him before the Court. Therefore, the prison administration should have allowed her to meet her client.

The Court considers that the allegation of hindrance raises serious issues of fact and law under the Convention, the determination of which requires its further examination.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint that between 31 March and 6 April 2004 his detention was not based on a court decision;

Decides to join to the merits the Government’s objection that Article 5
§ 4 does not apply to the detention proceedings at issue;

Declares admissible, without prejudging the merits, the applicant’s complaint and that the detention hearings of 3 July, 26 December 2003 and 8 June 2004 did not offer sufficient procedural guarantees;

Declares admissible, without prejudging the merits, the applicant’s complaint that the examination of his appeals against the detention orders of 26 December 2003 and 6 April 2004 was too slow;

Decides to pursue the examination of the allegation of the respondent Government’s failure to comply with its obligations under Article 34 of the Convention on account of the fact that Ms Liptser was unable to meet the applicant between 22 March and 12 April 2003;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President