CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 juillet 2009

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margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s82D7B801 { width:22.93pt; display:inline-block } .s188AFEEA { width:192.97pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION       CASE OF ALEKHIN v. RUSSIA   (Application no. 10638/08)             JUDGMENT       STRASBOURG   30 July 2009   FINAL   30/10/2009   This judgment may be subject to editorial revision In the case of Alekhin v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 7 July 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 10638/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Aleksandrovich Alekhin (“the applicant”), on 24 January 2008. 2.     The applicant was represented by Mr S. Vasilyev, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk,   former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin. 3.     The applicant alleged that he had not received adequate medical care in the remand centre, that he had been transported in inhuman conditions, that his detention pending trial had been excessively long and had not been attended by appropriate procedural guarantees, that he had no enforceable right to compensation for his detention in contravention of Article 5 §§ 3 and 4, that the criminal proceedings against him had been excessively long, that family visits had been restricted, and that he had not had adequate remedies at his disposal for the above complaints. 4.     On 26 March 2008 the President of the First Section decided to communicate the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The President made a decision on priority treatment of the application (Rule 41 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1969 and lives in St Petersburg. 6.     The applicant suffers from chronic hypertension and ischaemic heart disease and had ischaemic strokes on 29 December 2006 and 6 March 2007. A.     Criminal proceedings against the applicant 1.     The investigation and trial 7.     On 22 November 2005 six persons, including the applicant, were charged with unlawful business activities and money laundering, offences under Articles 172 § 2 and 174.1 § 4 of the Criminal Code. The applicant was accused of unlawful business practices carried out through several companies over a long period of time. 8.     The applicant retained two lawyers who represented him during the investigation and trial. 9.     On 27 September 2007 the investigation was completed and the case was referred for trial before the Moskovskiy District Court of St Petersburg. 10.     On 9 October 2007 the Moskovskiy District Court fixed a preliminary hearing for 19 October 2007. It ordered that the applicant be brought to the courtroom for the preliminary hearing and that he be accompanied by a doctor. 11.     On 19 October 2007 the Moskovskiy District Court held a preliminary hearing and fixed the opening date of the trial for 20 November 2007. The court reiterated that the applicant should be accompanied by a doctor when brought to the courtroom for a hearing. 12 .     The hearings of 20 November and 20 December 2007 were adjourned because the applicant was in hospital. 13 .     The hearings of 14, 21 and 28 January 2008 were adjourned because the applicant was not brought to the courtroom. The applicant had difficulty walking and the police escort refused to carry him on a stretcher, claiming that it did not form part of their duties. The stretcher did not fit standard prison vans, making it impossible to transport the applicant. Moreover, the remand centre authorities refused to assign a doctor to accompany the applicant to the courtroom. 14.     The court decided that further hearings should be held in the remand centre. 15.     Hearings were held on 11 and 18 February, 3, 17, 24 and 31 March, 14, 21 and 28 April, 12, 19 and 26 May and 2, 9, 23 and 30 June 2008. 16 .     No hearings were held in July or August 2008 as the defendants’ lawyers were on leave. 17.     The trial resumed on 29 August 2008, with further hearings held on 18 and 19 September 2008. 18.     On 19 September 2008 the Moskovskiy District Court convicted the applicant of unlawful business activities, an offence under Article 172 § 2 of the Criminal Code, and acquitted him of money laundering, an offence under Article 174.1 § 4 of the Criminal Code. It sentenced him to six years’ imprisonment. 19.     On 26 January 2009 the St Petersburg City Court upheld the judgment on appeal. 2.     Decisions concerning the application of a custodial measure   20.     On 22 November 2005 the applicant gave an undertaking not to leave the city or reoffend. 21.     On 13 February 2006 the Dzerzhinskiy District Court of St   Petersburg ordered his placement in custody. The court found on the basis of evidence submitted by the investigator that the applicant had continued his unlawful business activities despite his undertaking not to reoffend and had put pressure on his employees urging them to repudiate their testimony against him. It considered the applicant’s arguments that he had a permanent place of residence and employment, that he was the only breadwinner for his family consisting of his elderly mother, unemployed spouse and two minor children, and that he suffered from ischaemic heart disease. It found, however, that there was no medical evidence showing that his state of health was incompatible with custody. Given the gravity of the charges, there was a risk that he might abscond, reoffend or intimidate witnesses. 22.     On 28 February 2006 the St Petersburg City Court upheld the custody order on appeal, finding that it had been lawful, well-reasoned and justified. 23.     On 11 April 2006 the Dzerzhinskiy District Court extended the applicant’s detention until 10 June 2006. 24 .     On 8 June 2006 the Dzerzhinskiy District Court extended the applicant’s detention until 13 August 2006, referring to the gravity of the charges and the need for further investigation. The court found that the applicant had breached his undertaking not to reoffend and that several witnesses had requested anonymity because they feared threats from the applicant. In reply to the applicant’s argument about his poor health, it held that there was no medical evidence that his condition was incompatible with detention. His complaints about insufficient medical assistance were unsubstantiated. The court considered that the applicant had received adequate medical assistance in the remand centre. The court also noted that the applicant’s arguments concerning the incorrect legal characterisation of his actions and the lack of evidence of his involvement in the commission of the offences imputed to him were without substance because, in extending the applicant’s detention, the court could not make any findings as to his guilt or innocence. 25.     On 11 August 2006 the Dzerzhinskiy District Court extended the applicant’s detention until 10 October 2006 for the same reasons as before. It also noted that the length of the investigation was justified by the complexity of the case. 26.     On 10 October 2006 the Dzerzhinskiy District Court extended the applicant’s detention until 10 December 2006 for the same reasons as before. 27 .     On 6 December 2006 the Dzerzhinskiy District Court extended the applicant’s detention until 10 February 2007 for the same reasons as before. It also referred to the applicant’s leading position and his active role in the commission of the offences. He was the director of several companies and was suspected of planning and directing, through his connections in business circles, the unlawful business activities carried out by those companies. His position gave him an opportunity to destroy evidence and to intimidate witnesses who were his employees. The court referred to the written submissions by one of the witnesses, who had stated that the applicant had threatened him. The court further noted that the applicant’s children had not become abandoned after the applicant’s placement in custody. They were in the care of their mother, who was able to support them financially as she had permanent employment. 28.     On an unspecified date the investigator applied for a further extension of the applicant’s detention. He argued that the case involved several defendants and was extremely complex. The investigation team had already questioned 194 witnesses, conducted 45 searches and 209 inspections and seized 57 bank accounts. They had also carried out one operative experiment, seven identification parades and three confrontations and obtained numerous expert opinions. However, further investigation was necessary. In particular, it was necessary to question more witnesses, obtain more expert opinions and carry out other investigative measures. He further submitted that there was no reason to amend the preventive measure. The applicant was charged with serious criminal offences and there were reasons to believe that he might abscond, reoffend or interfere with the investigation. 29.     The applicant asked to be released on bail or under an undertaking not to leave the city. He referred to his frail health, which had deteriorated in detention. He also submitted that his minor child suffered from open tuberculosis. 30.     On 5 February 2007 the St Petersburg City Court extended the applicant’s detention until 10 June 2007, finding that the applicant had not submitted new arguments warranting his release. It transpired from the medical certificates that he had had an ischaemic stroke and that his right side was paralysed. However, in the court’s opinion, this was insufficient to warrant his release. There was no medical evidence showing that the applicant’s state of health was incompatible with custody. The applicant’s arguments about the absence of corpus delicti in his actions were irrelevant because the court deciding on a preventive measure did not have competence to make any findings as to his guilt or innocence. 31.     On an unspecified day the investigator applied for a further extension of the applicant’s detention. He argued that the six defendants and their counsel were studying the voluminous case file (68 binders and 145 boxes of material evidence) and that there was no reason to vary the preventive measure. 32.     The applicant asked to be released on bail. He submitted that his health had deteriorated, he could not stand or speak and needed constant medical supervision. He submitted a medical certificate of 22 March 2007 indicating that detention was incompatible with his state of health, and a medical certificate of 7 June 2007 indicating that he suffered from complications after an ischaemic stroke and required complex rehabilitation treatment. He was diagnosed with chronic cerebrovascular disease, right hemiplegia (paralysis of the right part of the body), motor aphasia (a deficit in speech production or language output, often accompanied by a deficit in communicating by writing, signs, etc.), ischaemic heart disease, hypertension and stenocardia. He complained that he was receiving insufficient treatment in the prison hospital and argued that it was necessary for him to undergo examinations and follow treatment in a civil hospital with a higher standard of care. He further submitted that his illness made him unable to abscond or intimidate witnesses. 33 .     On 7 June 2007 the St Petersburg City Court held a hearing. The applicant was brought to the courtroom on a stretcher accompanied by a doctor and assisted by a sign-language interpreter. The court extended the applicant’s detention until 13 August 2007, finding that he might abscond, reoffend or intimidate the witnesses. It found that the information in the medical certificate of 22 March 2007 was outdated, while the certificate of 7   June 2007 did not mention that the applicant’s state of health was incompatible with detention. He was being held in the prison hospital where he received adequate medical care and was under constant medical supervision.   34.     On 9 August 2007 the St Petersburg City Court extended the applicant’s detention until 10 October 2007 for the same reasons as before. It noted that it had already examined and rejected the applicant’s arguments about his poor health in the decision of 7 June 2007. The applicant had not submitted evidence that his health had deteriorated since. 35 .     The applicant appealed. The St Petersburg City Court received the appeal submissions on 14 August 2007 and sent them to the investigator, inviting him to submit comments. The investigator submitted his comments on 24 August 2007. On 29 August 2007 the appeal submissions and the comments received were forwarded to the Supreme Court of the Russian Federation. The Supreme Court received them on 5 September 2007.   36 .     On 4 October 2007 the Supreme Court examined the applicant’s appeal submissions and upheld the extension order, finding that it had been lawful and justified. 37.     On 9 October 2007 the Moskovskiy District Court of St Petersburg accepted the case for trial and ordered that the applicant should remain in custody. It noted that on 3 July 2007 the applicant had been discharged from hospital and that his health was satisfactory. He had however remained in hospital pending his transfer to the remand centre. The court ordered that the applicant be immediately transported from the prison hospital to remand centre SIZO-3 in St Petersburg. 38 .     On 7 November 2007 the Moskovskiy District Court ordered that the applicant remain in custody pending trial. The court rejected the applicant’s request for release, referring to the gravity of the charges and to the fact that he was receiving the requisite medical care in the remand centre. It also rejected the prosecutor’s request for the applicant’s transfer to another remand centre. It took note of the prosecutor’s arguments that such transfer was necessary to ensure better medical assistance. It found, however, that it had no competence to decide in which remand centre the applicant should be held. It further mentioned that on 4 October 2007 it had, at the request of remand centre SIZO-3, applied to the competent authority, namely the regional office of the Federal Department for the Execution of Sentences, with a request to transfer the applicant to another remand centre. That request had not yet been examined. 39 .     On 20 December 2007 counsel for the applicant lodged an application for release before the Moskovskiy District Court. He submitted that the applicant’s health had deteriorated after his transfer to the remand centre, that he had again been taken to the prison hospital and that he had been granted disability status. 40.     On the same day the Moskovskiy District Court rejected the request. It noted that on 18 December 2007 the applicant had been discharged from hospital and that, given the gravity and nature of the charges, he might reoffend or interfere with the proceedings. 41.     On 17 March 2008 the Moskovskiy District Court extended the applicant’s detention until 9 July 2008, referring to the gravity of the charges and the risk of his reoffending or interfering with the proceedings. 42.     On 19 May 2008 the applicant lodged an application for release before the Moskovskiy District Court. He submitted that his flat had been burgled several times while he had been in custody and that his wife and children had received threats from unidentified persons. He asked to be released to be able to protect his family and his property. He also referred to his poor health and disability status. 43.     On the same date the Moskovskiy District Court rejected his request. The applicant had not submitted any evidence in support of his allegation about threats to his family. In any event, the protection of his family and property was a matter for the police. Nor could his disability status warrant release, as he was receiving sufficient medical assistance in the remand centre. B.     Medical assistance 44 .     On 14 February 2006 the applicant was placed in remand centre SIZO-3 in St Petersburg. On the same day he was examined by the remand centre doctor. He complained of chest pains and numbness of the left arm. The doctor diagnosed him with hypertension and ischaemic heart disease and found that his general state was satisfactory. The doctor further noted that the applicant had refused the proposed treatment. 45.     According to a certificate of 14 April 2008 from the authorities at the facility, produced by the Government, during the entire period of his detention in SIZO-3 the applicant received adequate medical assistance. There was a medical unit in the remand centre which was open for eight hours each day, excluding weekends and public holidays. An ambulance was immediately called whenever the applicant was unwell. He received treatment appropriate to his condition. However, he occasionally refused the medicines offered, claiming that he did not recognise them. He demanded that the doctor provide him with specific medicines rather than the generics available in the medical unit. 46.     On an unspecified date in mid-August 2006 the applicant went on hunger strike. 47 .     On 16 August 2006 the applicant complained of heart pains and was taken to Haass prison hospital ( УС 20/12 ФГЛПУ Областная больница им. доктора Ф.П. Гааза ГУ ФСИН России по СПб и ЛО ). There he underwent numerous examinations (blood and urine tests, coronary angiography, ultrasound examination, etc.), was diagnosed with hypertension and ischaemic heart disease and prescribed treatment. He was discharged on 24   August 2006. 48.     On the same day he complained to the remand centre doctor of a tumour beneath his right ear. The doctor applied an alcohol compress. The tumour receded. On 29   August 2006 it reappeared. 49.     On 31 August 2006 the applicant was diagnosed with lymphadenitis (inflammation of a lymph node). On the same day he was taken into Haass prison hospital for surgery. 50.     In hospital he was subjected to several medical tests and on 1   September 2006 underwent surgery. He received post-surgery treatment and treatment for high blood pressure. He continued his hunger strike and refused to eat. 51.     On 11 September 2006 the applicant was discharged. On the next day the area beneath his right ear swelled again. 52.     On 13 September 2006 he was taken to Haass prison hospital and diagnosed with mumps (an acute contagious viral disease of the salivary glands). The doctors noted that the disease was due to the deterioration of the applicant’s immune system caused by a one-month hunger strike. Judging by the state of his health, however, it was unlikely that the applicant had completely refused food for a month. He had been seen by doctors eating pureed baby food. The applicant underwent more medical tests and received treatment for mumps. On several occasions during his stay in hospital the doctors tried to persuade him to stop the hunger strike. 53.     On 25 September 2006 the applicant was discharged and on 28   September 2006 he was transported back to remand centre SIZO-3. On an unspecified date he discontinued the hunger strike. 54.     On 29 December 2006 the applicant had an ischaemic stroke and was taken into Haass prison hospital. He was examined by a neurosurgeon and an intensive-care specialist. The doctors noted that his right limbs were paralysed and his tongue was crooked. They prescribed treatment. 55.     On the next day the doctors noted no improvement. As his condition was unstable, he was transferred to the intensive-care unit. 56.     The applicant remained in the intensive-care unit until 9 January 2007. By that time he had become stable and had regained the ability to speak and walk, albeit with difficulty. His right arm remained paralysed. On 9   January 2007 he was transferred to a neurosurgery unit. 57.     The applicant was examined daily and received treatment. Additional medication was sent to him by his relatives. 58.     On 30 January 2007 the applicant was examined by Dr S., chief neurologist of St Petersburg and a member of the Russian Academy of Medical Science. Dr S. confirmed the diagnosis of the Haass prison hospital doctors, noted that long-term rehabilitation treatment was necessary and prescribed nootropics, vasoactive substances, muscle relaxants, vitamins, massage and exercise. It transpires from the applicant’s medical record that he received the prescribed medication both from the hospital doctors and from relatives. However, the doctors noted that there was a risk of a further ischaemic stroke. 59.     On 28 February 2007 the applicant was discharged with a recommendation to continue the treatment and to avoid poorly ventilated spaces. Constant medical supervision was necessary. On 1 March 2007 the applicant was transported to remand centre SIZO-3. 60.     On 6 March 2007 the applicant had another ischaemic stroke. He was immediately taken to Haass prison hospital, where he remained until 26   April 2007. He was diagnosed with chronic impairment of his cerebral blood circulation. He received the same treatment as before. His right arm remained paralysed, the motor functions of his right leg remained partly impaired and he had difficulty walking and speaking. A doctor noted on 3   April 2007 that the applicant’s participation in investigative measures was inadvisable. 61.     On 26   April 2007 the applicant was transported back to remand centre SIZO-3. The hospital doctors recommended that the treatment be continued. 62.     On 1 June 2007 the applicant fainted and was again taken to Haass prison hospital. He was diagnosed as having a hypertensive attack. He was unable to speak or move his legs and right arm. However, the doctors noted that “there was no clinical evidence of motor aphasia (a deficit in speech production) or triplegia (paralysis of three limbs).” His symptoms were likely to be caused by neurasthenia. 63.     During his stay in Haass prison hospital the applicant was regularly examined by a neurologist, who diagnosed him with functional hemiplegia (paralysis of psychogenic origin, in the absence of other signs of motor system dysfunction). 64.     The applicant received treatment for hypertension. His blood pressure, however, remained high. By 9 June 2007 he had started to speak. It also transpires from the medical certificates that he was physically capable of walking but did not want to walk. When his attention was distracted he could move both legs. 65.     According to the applicant he was regularly questioned by the investigator. He was brought to the interview room of the hospital on a stretcher which was put directly on the floor. The interviews lasted several hours, during which he remained on the cold floor. According to the Government, the applicant was never carried to the interview room. All interviews took place on the applicant’s ward. The length of each interview was determined by a doctor. 66.     On 3 July 2007 the applicant was discharged. However, due to the unavailability of transport he stayed in hospital until 11 October 2007. He was regularly examined by doctors and received treatment for hypertension. He remained confined to his bed. On 11 October 2007 he was transported to remand centre SIZO-3. 67 .     On 7 November 2007 the applicant had a hypertensive cerebral attack and was again taken to Haass prison hospital. He received the same treatment as before. By 28 November 2007 his condition was stable and he started to walk using support. However, the medical record noted that he walked with great difficulty. His right arm remained paralysed. 68 .     On 4 December 2007 the applicant was again examined by Dr S. The latter noted that as a result of repeated ischaemic strokes and hypertensive attacks the applicant was suffering from persistent right hemiplegia (paralysis of the right part of the body), cognitive disorder, hemianopsia (loss of half the vision in both eyes), right hemianaesthesia (loss of tactile sensibility on the right side of the body) and ataxia (neurological symptom consisting of gross lack of coordination of muscle movements). He recommended that the treatment should be continued and that additional examinations be performed, in particular a brain positron emission tomography (PET scan) and transcranial sonography. 69.     On 14 December 2007 the applicant was granted disability status. 70 .     According to the applicant, by a letter of 19 December 2007 the head of Haass prison hospital stated that the hospital did not have the medical equipment to perform the examinations and that his continued detention might be detrimental to his health. 71.     On 18 December 2007 the applicant was discharged and on 21   December 2007 he was transported to remand centre SIZO-4 in St Petersburg. 72.     The applicant stated that he had been transported in an unequipped prison van and had not been accompanied by a medical specialist. The journey had lasted for four hours in the freezing cold. The heating system and the lights had not functioned. The escorts had ordered him to get into the van by himself, although the van door was about a metre above the ground. 73 .     It follows from a certificate of 12 May 2008 issued by a deputy head of the prison escort service of the Federal Department for the Execution of Sentences of St Petersburg and Leningradskiy Region, submitted by the Government, that the applicant was transported in a standard prison van together with fourteen other persons. The applicant’s medical record indicated that his condition was satisfactory and that he could be transported unaccompanied by a doctor. The prison van was designed to carry twenty ‑ one prisoners and had two communal compartments and one individual compartment. It was equipped with wooden benches, had a functioning heating system and lights. It was naturally ventilated through hatches in the roof. The van had been checked that morning by a maintenance technician and was technically in good order. The applicant had been put in the van between 10.20 and 11.25 a.m. and arrived at SIZO-4 at 1.50 p.m. The route was 38 kilometres long and took two hours and fifty minutes. The weather on that day was between + 3 and 5º C. The applicant had not complained about the conditions of transport. The Government submitted documents in support of their allegations, in particular reports dated 21   December 2007 by the maintenance technician and the convoys, waybills and a weather report for that day. 74 .     In SIZO-4 the applicant was placed in the medical wing, where he remained until 1 February 2008. He received treatment for hypertension. According to the applicant, the medical wing did not have the requisite cardiological equipment and there was only one doctor for 2,000 detainees. 75.     On 1 February 2008 the applicant was transferred to an ordinary cell, where he remained until 2 February 2009. He continued to receive treatment for hypertension and was regularly examined by the remand centre doctor. In February 2008 the doctor examined him once a week, and starting from March 2008 once or twice a month. After each visit the doctor noted that the applicant’s condition was satisfactory and prescribed further treatment. He noted that the applicant could walk using support. However, he refused to leave his cell. His right arm remained paralysed and the motor functions of his right leg remained impaired. 76.     It appears that on 2 February 2009 the applicant was transferred to a correctional colony where he is now serving his sentence. C.     Family visits 77.     The applicant stated that family visits had been restricted. His wife had been allowed to visit him only three times in 2006. No visits had been permitted in 2007. 78.     According to the Government, the applicant was visited by his wife and mother on 30 March, 6 and 20 July, 3 August and 21 and 28   December 2006 and on 30 January 2008. None of his requests for permission to see his family had been refused. He did not request any visits in 2007. II.     RELEVANT DOMESTIC LAW A.     Detention pending trial and judicial review of detention 79.     Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001 – “the CCrP”). 80.     “Preventive measures” ( меры пресечения ) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear ( обязательство о явке ) (Article 112). 81.     When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 82.     Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 83.     After arrest the suspect is placed in custody “during the investigation”. The maximum permitted period of detention “during the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9). 84.     From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the judicial proceedings”). Within fourteen days of receipt of the case file (if the defendant is in custody), the judge is required to either: (1) refer the case to a competent court; (2) fix a date for a preliminary hearing ( предварительное слушание ); or (3) fix a date for trial (Article 227). On receipt of the case file the judge must determine, in particular, whether the preventive measure applied should be lifted or changed (Articles 228 (3) and 231 § 2 (6)). 85.     The period of detention “during the judicial proceedings” is calculated up to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and   3). 86.     An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide on the appeal within three days of its receipt (Article 108 § 10). 87 .     Defendants may petition officials or a court to take procedural decisions that would secure their rights and legitimate interests (Article 119 §§ 1 and 2). Such petition may be lodged at any time during the investigation or the judicial proceedings (Article 120). It must be examined by the official or the court within three days (Article 121). 88 .     At any time during the judicial proceedings the court may order, vary or discontinue any preventive measure, including detention (Article 255 § 1). Any such decision must be given in the deliberations room and signed by all the judges in the formation (Article 256). An appeal against such a decision lies to the higher court (Article 255 § 4). 89 .     The appeal court must examine the criminal case within a month of the receipt of the case file (Article 374). B.     State liability for unlawful detention 90 .     The State or regional treasury is liable – irrespective of any fault by State officials – for damage sustained by an individual on account of, in particular, unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1070 § 1 of the Civil Code). 91 .     A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non ‑ property rights, such as the right to personal integrity and the right to freedom of movement (Articles 150 and 151 of the Civil Code). Non ‑ pecuniary damage must be compensated for irrespective of the tortfeasor’s fault in the event of, in particular, unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1100 § 2).   III.     RELEVANT COUNCIL OF EUROPE DOCUMENTS 92.     The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “ a.   Access to a doctor ... 35.     A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ... Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36.     The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... 37.     Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.” b.   Equivalence of care 38.   A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.   There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39.   A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.   Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40.   The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 93.     The applicant complained of the allegedly inadequate medical assistance he had received in detention, the authorities’ refusal to release him on health grounds or transfer him to a civil hospital with a higher standard of care and the allegedly inhuman conditions of his transport on 21   December 2007. He relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Medical assistance 94.     The Government submitted that the applicant had not exhausted the domestic remedies available to him. He had never complained of inadequate medical assistance to a prosecutor, such complaint being, in the Government’s opinion, an effective remedy. They referred to improvements in the conditions of detention which had been made in response to complaints lodged with the prosecutor’s office by Mr N., Mr D. and Mr Sh. (a medical unit had been set up, medicines purchased and maintenance work carried out). They stated that 13% of complaints about allegedly inadequate conditions of detention had been considered well-founded in 2007, while in the first half of 2006 the prosecutors had recognised 18% of such complaints as well-founded. It was also open to the applicant to seek compensation for non-pecuniary damage before a court. To prove the effectiveness of that remedy, the Government referred to two judgments by the domestic courts awarding Mr S. and Mr D. compensation for their detention in appalling conditions. 95.     In the alternative, the Government argued that the complaint was manifestly ill-founded. The applicant had received medical assistance appropriate to his condition. He had been under constant medical supervision by the remand centre doctor. Whenever an emergency occurred an ambulance had been immediately called for him and he had been taken to hospital for examination and treatment. He had been regularly examined by medical specialists, had been subjected to a number of medical tests and had received adequate and timely treatment. 96.     The applicant maintained his claims. 97.     The Court considers that it is not necessary to examine the Government’s objection as to non-exhaustion of domestic remedies, as the applicant’s complaint concerning the allegedly inadequate medical assistance must in any event be declared inadmissible for the reasons stated below. 98.     According to the Court’s established case-law Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). However, to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity (see Valašinas v.   Lithuania , no. 44558/98, §§ 100–101, ECHR 2001-VIII). Whether the severity of the ill-treatment or neglect reaches the threshold prohibited by Article 3 will depend on the particular circumstances of the case, including the age and state of health of the person concerned as well as the duration and nature of the treatment and its physical or mental effects (see Sawoniuk v. the United Kingdom (dec.), no.   63716/00, 29 May 2001). 99.     The Court has consistently stressed that Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to transfer him to a civil hospital, even if he is suffering from an illness that is particularly difficult to treat (see Gelfmann v. France , no. 25875/03, § 50, 14   December 2004, and Mouisel v. France , no. 67263/01, § 40, ECHR 2002 ‑ IX). However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła v.   Poland   [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI). 100.     The Court has already had occasion to note that, under certain circumstances, the detention of an elderly or severely disabled person over a lengthy period and in conditions inappropriate to his or her state of health might raise an issue under Article 3 (see Papon c. France (dec.), no.   64666/01, 7 June 2001; Price v. the United Kingdom , no.   33394/96, §§ 21 to 30, ECHR 2001 ‑ VII; and Farbtuhs v. Latvia , no. 4672/02, § 53, 2   December 2004). Nonetheless, regard is to be had to the particular circumstances of each specific case, such as (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention and (c)   the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, cited above, §§ 40-42, and Sakkopoulos v. Greece , no. 61828/00, § 39, 15   January 2004). 101.     The Court will apply this test to the particular circumstances of the present case. 102.     As regards the applicant’s condition, the Court notes that it was not contested that both before his arrest and during his detention in remand centres SIZO-3 and SIZO-4 the applicant had suffered from hypertension and ischaemic heart disease. His state of health was precarious, he required constant medical supervision and treatment and ran a high risk of stroke. While in detention he had two ischaemic strokes and several hypertensive attacks. As a result of the hypertensive attack of June 2007 he became hemiplegic, with his right arm paralysed and the motor functions of his right leg impaired. 103.     The Court will next examine whether the applicant was provided with medical assistance appropriate to his co