CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 juillet 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sB8084949 { width:138.49pt; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 28370/05 by Vladimir VASILYEV against Russia The European Court of Human Rights (First Section), sitting on 1 July 2010 as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having regard to the above application lodged on 18 July 2005, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, 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 Vladimir Aleksandrovich Vasilyev, is a Russian national who was born in 1953 and is serving a prison sentence in a colony in the town of Solikamsk, Perm Region. He is represented before the Court by Mr T.   Misakyan, a lawyer practising in Moscow. The Russian Government (“the Government”) are represented by Mr G.   Matyushkin, 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.     Criminal proceedings against the applicant The applicant was arrested on 8 February 1996 in the town of Ukhta, Komi Republic. On 9 February 1996 he was brought to hospital because he had frostbite on his feet. The doctors concluded that the standard treatment for frostbite would suffice. According to the applicant, he was kept in the Ukhta detention facility in appalling conditions; no medical treatment was provided which caused his condition to worsen. Allegedly, the applicant was not provided with legal assistance and was forced to admit to a murder in exchange for medical treatment prescribed by doctors. On 10   April 1996 the applicant underwent a surgical operation resulting in the amputation of the fifth toe on his right foot and the distal part of his left foot. On 25 December 1997 the Supreme Court of the Komi Republic convicted the applicant of, inter alia , attempted rape and several counts of murder and sentenced him to death. On 22 December 1998 the Supreme Court of Russia upheld the trial judgment in substance. It appears that the applicant was not apprised of the appeal hearing and was not brought to it. Nor was he represented. In 1999 the President of Russia issued an act of clemency in respect of the applicant, replacing the death penalty with life imprisonment. Thereafter, the applicant unsuccessfully sought supervisory review of the conviction. On 20   June 2005 the Supreme Court examined and rejected one such application. A renewed request by the applicant was also rejected by a Supreme Court judge in October 2009. 2.     The applicant's medical condition and his complaints to national authorities (a)     Between 1996 and 2001 Between February 1996 and January 2000 the applicant was detained in Sosnogorsk remand centre no.   11/2 in the Komi Republic, as well as in other detention facilities for short periods of time. It appears that in 1996 and 1997 the applicant was transported between various detention facilities and the courthouse on at least one hundred and twenty occasions. According to him, he was not provided with any adequate food on the relevant days. In 1996 the applicant was diagnosed with diabetes (type 1) and received insulin treatment for one year. It was then replaced by oral medication, Oranil or Maninil (an anti-diabetic derivative [1] ). In December 1999 the applicant was admitted to Ukhta Civil Hospital for examination. A group of experts concluded that he was able to work, except if it required physical exertion; no disability status was attributed. As follows from a letter of 3 April 1998, the Sosnogorsk Town Prosecutor's Office examined the applicant's complaint about medication and concluded that the applicant had received weekly blood tests, had been given a special diet (five meals per day) and had been lawfully kept in solitary confinement. On 21   April 1998 a similar complaint was examined by the local Department of the Interior, which concluded that the applicant was receiving the requisite medication and that he was not entitled to a special diet. In January 2000 the applicant was transferred to prison OS-34/24 where, according to the Government, he was provided with medical assistance on a regular basis.   According to the applicant, during that period he did not undergo any tests for his diabetes or cholesterol and no medical file was opened. Allegedly, he was not examined by medical specialists. According to the applicant, his medication was out of date; he remained handcuffed when outside his cell. (b)     Between 2001 and 2005 In 2001 the applicant was transferred to colony no.   2 in the Perm Region (“the colony”). Allegedly, because diabetes had not been mentioned in the record, he did not receive any treatment. Since then he has started having pains along the right side of his body, headaches and heart pain. Allegedly, he was not given any sugar substitutes and was not examined by any specialist doctors. According to the Government, the applicant was examined on his arrival at the colony. Since 2001 he has received medical examinations twice per year, including laboratory tests, an x-ray and a consultation with specialist medical doctors. Between 2002 and 2004 the applicant was treated in relation to his tuberculosis. His most recent blood and urine tests were satisfactory. It was also indicated that he would shortly be examined to determine his need for dental and ophthalmologist treatment and orthopaedic footwear. In late 2004 the applicant was treated for his diabetes, diabetic angiopathy (the generic term for a disease of the blood vessels) and other diseases in prison hospital VK-240/1-2. The doctors recommended oral medication to lower blood glucose and a specialised diet. (c)     Since 2005 On 3 May and 31 October 2005 the Penitentiary Office of the Perm Region rejected the applicant's complaints indicating that no special or high-vitamin diet was required for prisoners suffering from diabetes; that they were to be fed according to the “minimum standard” set by the Ministry of Justice; that the applicant was given appropriate medication; that in December 2005 he would be able to have a medical consultation concerning his requests for dental treatment, orthopaedic footwear and an eyesight check-up. In October 2005 the applicant had an X-ray, which showed no anomalies.   From 28 November to 8 December 2005 he was provided with dental treatment in the hospital of prison no.   9. He had a partial maxillary and full mandibular adentia (loss of teeth) connected to his then sub-compensated diabetes status. As follows from the medical file, the applicant had various blood and urine tests. The applicant was examined by specialist doctors (a surgeon, neuropathologist and an ophthalmologist) who recommended regular medical check-ups. The ophthalmologist diagnosed a slight myopia of both eyes and angiopathy. The applicant also had chronic pancreatitis but was in a stable condition. The applicant was given a dental prosthesis and instructions on how to use it. The final recommendations included a carbohydrate diet, regular blood tests and enzymes, when needed. On an unspecified date the applicant handed over his allegedly defective denture to his lawyer for an unspecified reason.   On 24 October 2007 the Penitentiary Office rejected the applicant's complaints as unfounded. It indicated that his state of health was satisfactory as followed from his most recent medical examination. It was also indicated that a consultation with a dentist was not possible because the applicant did not have his denture (which he had handed over to his lawyer). The applicant was examined in August 2009 in a regional hospital by a medical commission composed of the governor of prison no. 9 and the head officers of its gastroenteritis and neurology units. The applicant's condition was classified as satisfactory. The commission confirmed the diabetes (type   2) diagnosis and symptoms of encephalopathy. The commission concluded that the applicant did not require inpatient treatment in the prison hospital and recommended a low fat and carbohydrate diet; glucose tests and continued diabetes-related treatment by vasoactive and nootropic substances. The administration of Perm prison no.   2 affirmed in a certificate dated 17   August 2009, produced by the Government, that, during the entire period of his detention, the applicant had been and was being provided adequate medication, including glucose-related medicines and a five-meal daily diet. 3.     Civil proceedings for compensation on account of damage to health The applicant sued the Ukhta Department of the Interior and several other public authorities before the Ukhtinskiy District Court of the Komi Republic (“the District Court”). [2] His claim was dismissed on procedural grounds on several occasions. In 2003 the District Court, however, agreed to process a renewed claim. The applicant alleged, inter alia , that he had not been provided with the requisite medical assistance in 1996; as a result of medical negligence, parts of his feet had had to be amputated; and he had not been given a special diet adapted to his diabetes in late 1990s. In September and November 2003 the applicant wrote to the District Court expressing his consent to an expert examination and suggested some questions to be put to the expert. On 17 and 25 December 2003 the District Court held hearings and heard the prosecutor, the defendants and witnesses. The court dispatched summons to the applicant in prison. It issued no request for his transfer for any hearings, despite requests by the applicant. In December 2003 the presiding judge asked to see the applicant's medical record from prison hospital VK-240/1-2 in Solikamsk. In April 2004 a Mr Sh. applied to Ukhta Civil Hospital on behalf of the applicant asking for the applicant's medical file, in particular in relation to the year 1996. He was informed that the applicant's medical record had been destroyed because the building in which the hospital had filed it had been flooded in June 1999. An expert report was commissioned and carried out on the basis of the available material. The expert concluded that the surgical operation had been justified; the applicant's diabetes was hereditary; its treatment had been appropriate, including Maninil; and that an adequate diet had been given to the applicant. A copy of the expert report was sent to the applicant in January 2005. According to the applicant, he never saw the documents which served as a basis for the expert report. Hearings in February and March 2005 were adjourned in the absence of any proof that the applicant had been properly notified. On 31   March 2005 the court received a letter from the applicant in which he commented on the expert report and also sought access to the medical documents submitted by the defendants and his own participation in the hearing. By a judgment of 19 May 2005, the District Court rejected the applicant's claims. The applicant appealed. The defendants lodged their observations in reply. On 28 July 2005 the applicant was provided with a copy of the trial verbatim record. In August 2005 he was served with a copy of the defendants' observations. By a letter of 29 August 2005, the applicant was informed that an appeal hearing was listed for 29 September 2005 and that “his absence would not halt the proceedings”. Having heard the prosecutor, on 29 September 2005, the Supreme Court of the Komi Republic upheld the judgment. In October 2005 the applicant received a copy of the appeal decision. B.     Relevant domestic law and practice 1.     Civil court proceedings The Code of Civil Procedure of the Russian Federation (“the CCP”) provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). A court may appoint a lawyer to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in court proceedings in civil disputes concerning alimony or pension payments or claims for employment-related health damage (section 26 § 1). In 2005 the Russian Government launched a test project in a number of regions concerning provision of free legal assistance in civil law matters (decree no.   534 of 22   August 2005). Articles 57 and 149 of the CCP provide that parties may seek a court's assistance in obtaining evidence. The relevant party should indicate the circumstances impeding access to such evidence and its relevance to the case, as well as the location from where such evidence should be collected. An unjustified failure to comply with the court order could lead to the person or official in possession of the relevant evidence being fined. In a given civil case a civil court could ask a court in another location to carry out specific actions in relation to the evidence situated in that location (Article 62 of the CCP). This request is mandatory and has to be carried out within one month from its receipt. Under Articles 58 and 184 of the CCP, a court may hold a session outside the courthouse if, for instance, it is necessary to examine evidence which cannot be brought to the courthouse. 2.     Other relevant legislation and practice The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). A convicted person may consult his or her lawyer (Articles 12 and 89). On several occasions the Constitutional Court examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence, or the court in which the case is being heard may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21   February 2008). 3.     Medical assistance in detention facilities Until 2 August 2005 food supplies to detainees were regulated by Decree no.   136 of 4 May 2001 of the Federal Ministry of Justice. Since 2   August 2005 they have been regulated by Decree no.   125. Neither decree has provided for any particular diet concerning detainees suffering from diabetes. On 11 December 2007 the Federal Ministry of Health issued a standard protocol for outpatient treatment of persons suffering from non-insulin dependent diabetes. The protocol recommends, inter alia , a yearly provision of thirty-six glucose (laboratory) tests and for one hundred and eighty glucose meter tests. COMPLAINTS   1.     The applicant complained under Article 3 of the Convention that he had not been and was not being provided with adequate medical assistance in the detention facilities. 2.     Referring to the events between 1996 and 2001, he complained under Article 3 of the Convention that the conditions of his detention in various detention facilities and conditions of transport between those facilities and the courthouse had been appalling and that he had been ill-treated. 3.     The applicant complained under Articles 6 and 13 of the Convention that the civil proceedings had been unfair. He alleged in particular that the principle of the equality of arms had not been respected in that he had not been afforded an opportunity to be present at the hearings. 4.     In his application form of 17 January 2006 the applicant raised complaints under Articles 3, 6 and 13 of the Convention and Article 1 of Protocol No.   6 about the criminal proceedings against him, in particular the alleged lack of legal assistance after his arrest and in the appeal proceedings and the death row procedure before 1999. He also alleged violations of Articles 3 and 4 of Protocol No.   7 in relation to the criminal proceedings, in particular as regards various refusals to reopen them by way of supervisory review. THE LAW 1.     The applicant complained that he had not been and was not being provided with proper medical assistance in the detention facilities. He alleged that this failure on the part of the national authorities amounted to a violation of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     The parties' submissions The applicant alleged that the authorities had been negligent in 1996. He also insisted that he had not been and was not being provided with a diet, which was an indispensable part of his diabetes treatment. The domestic regulations did not make any provision for such diet. The prescribed medication was not efficient and was, at times, out of date. The available documents disclosed that the detention facilities were not equipped with glucose meters while ordinary laboratory blood tests, which were carried out once every four months, were manifestly inadequate and irregular. Owing to inadequate medical treatment and monitoring, the applicant had dramatic changes in blood sugar levels. The applicant lost all his teeth; the dentures provided in 2005 had become unfit on account of the loss of teeth. The applicant argued that the dentists in the detention facilities in which he was being detained had no equipment which would allow for implants to be fixed in his mouth. The absence of the appropriate denture and diet could lead to various diseases in his digestive system. He also had progressive hearing and sight loss. He was not provided with any orthopaedic footwear, which was necessary on account of the injuries to his feet. In the absence of such footwear, he suffered pain in his feet. The Government argued that during his detention the applicant had been provided and continued to be provided with all requisite medical care. B.     The Court's assessment Despite the parties' omission to make submissions regarding the compatibility of the complaint ratione temporis and the six-month rule, the Court should first deal with these matters (see Blečić v. Croatia [GC], no.   59532/00, §§ 67 and 68, ECHR 2006 ‑ III). First, the Court considers that the applicant's claim of medical negligence relating to the events in 1996 should be excluded from the scope of the present application because it concerns specific events in the past. The Court considers that this part of the application should be rejected as falling outside the Court's competence ratione temporis because the Convention did not enter into force in respect of Russia until 5 May 1998. Similarly, the grievances concerning medical assistance before that date fall outside the scope of the Court's jurisdiction. Second, the Court reiterates that the purpose of the six-month rule under Article 35 § 1 of the Convention is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore it ought to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria , 29 August 1997, §§ 32 and 33, Reports of Judgments and Decisions 1997-V). Lastly, the rule should ensure that it is possible to ascertain the facts of the case before that possibility fades away, making a fair examination of the question at issue next to impossible (see, among others, Zenin v. Russia (dec.), no.   15413/03, 24 September 2009). In view of the above, the Court is precluded from examining the applicant's grievances concerning medical assistance provided to him before 18 January 2005, which date is six months prior to the date of introduction of the present application (see, mutatis mutandis , Moskovets v. Russia , no.   14370/03, § 48, 23 April 2009). The Court considers, in the light of the parties' submissions, that the complaint concerning medical assistance since 18 January 2005 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.   2.     The applicant complained under Articles 6 and 13 of the Convention that the civil proceedings had been unfair. He alleged in particular that the principle of the equality of arms had not been respected in that he had not been afforded an opportunity to be present at the hearings. The Court will examine this complaint under Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The Government submitted that a detainee had a possibility to seek legal advice for a fee in a bar association or a law firm. A lawyer or other persons could be authorised to visit a convicted detainee, including for a legal consultation. The applicant, however, had not applied for any such meetings. While the national legislation did not require provision of free legal assistance in civil court proceedings, the applicant's reference to lack of financial means should not have prevented him from seeking legal advice, readily available free of charge in cases concerning health damage under the Advocates Act. In addition, a convicted detainee could present his arguments to a court by way of a video link or in writing, which would be sufficient. In the Government's submission, the Code of Execution of Sentences implicitly authorises a court to require a detainee's presence at a court hearing if required by the interests of justice and for the protection of individual rights. The Government concluded that neither the letter nor the spirit of Article 77.1 of the above-mentioned Code or the Code of Criminal Procedure precluded the hearing of a detainee in person in civil cases.   The Government further argued that the fairness of the proceedings, including the principle of the equality of arms, had been respected in the applicant's civil case. He had been properly notified of the hearings, had made a written deposition on the court's request, had been afforded an opportunity to suggest questions to be put to a medical expert and had been provided with a copy of the trial verbatim record, as well as the defendants' appeal observations. The first-instance court received and examined the applicant's requests, as well as his comments on the other parties' submissions and the expert report. In view of the above, the applicant had not been put at any significant disadvantage vis-à-vis the other parties. The applicant submitted that he had no means to retain counsel. He was not entitled to free legal advice under the Advocates Act or any other statute. Since his claim was based on various aspects of his personal experience (such as the medication condition and treatment, lack or presence of certain documents) his personal testimony before the civil court was the decisive, if not the main, tool for ensuing the equality of arms. The above-mentioned consideration acquired even more importance, given the unavailability of the applicant's medical file.   Neither the Code of Civil Procedure nor the Code of Criminal Procedure contained any explicit provision which made it possible for detainees to participate in civil court proceedings. No such provision was present in the Code of Execution of Sentences. 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.   3.     The applicant also complained under Articles 3, 6 and 13 of the Convention and Article 1 of Protocol No.   6 about the criminal proceedings against him, in particular the alleged lack of legal assistance after the arrest and in the appeal proceedings, and the death row procedure before 1999. The Court reiterates that the applicant lodged the above complaints in January 2006, while the criminal proceedings had ended in December 1998 and the death penalty had been commuted in 1999. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention.   4.     Referring to the events between 1996 and 2001, the applicant complained under Article 3 of the Convention that the conditions of his detention in various detention facilities and the conditions of transport between those facilities and the courthouse had been appalling and that he had been ill-treated. In so far as the matters complained of are within its competence and assuming that the applicant had no remedies to exhaust, the Court considers that those complaints were introduced more than six months after the facts complained of had ceased to exist. It follows that this part of the application has also been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention.   5.     Lastly, the applicant complained in general terms about violations of Articles 3 and 4 of Protocol No.   7 and the refusals to reopen the criminal proceedings by way of supervisory review. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.   In view of the above, it is appropriate to discontinue the application of Article 29 § 1 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant's complaints concerning medical assistance after 18 January 2005 and the fairness of the civil proceedings; Declares the remainder of the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President   [1] The description notice about the use of “Maninil 5” reads: [for] insulin-independent diabetes if diet-based therapy is not effective. The notice also says: “The basis for the treatment of diabetes is a prescribed diet to be strictly adhered to. It is prohibited to replace the diet with Maninil”. [2] Ukhta is situated 1,400 km from Solikamsk, where the applicant was serving his sentence at the time of this court action.