CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 août 2019

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RUSSIA   (Applications nos. 32631/09 and 53799/12)                 JUDGMENT           STRASBOURG   27 August 2019     FINAL   27/11/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. Magnitskiy and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Vincent A. De Gaetano, President,   Georgios A. Serghides,   Helen Keller,   Dmitry Dedov,   María Elósegui,   Gilberto Felici,   Erik Wennerström, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 2 July 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications 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 three Russian nationals. 2.     The first application (no. 32631/09) was lodged by Mr   Sergey Leonidovich Magnitskiy (“the first applicant”) on 11 June 2009. On 24   March 2010 his wife, Ms Nataliya Valeryevna Zharikova (“the second applicant”), informed the Court of her husband’s death on 16   November 2009, indicated her wish to pursue the application and raised additional complaints. 3.     The second application (no. 53799/12) was lodged by the mother of the first applicant, Ms Natalia Nikolayevna Magnitskiya (“the third applicant”), on 21 August 2012. 4.     Mr Magnitskiy and his widow were initially represented by Mr   D.   Kharitonov and Ms E. Oreshnikova, lawyers practising in Moscow. The second applicant was then represented by lawyers from the Open Society Justice Initiative, including its executive director, Mr J. Goldston. They also represented the third applicant. 5.     The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 6.     The first applicant alleged, in particular, that the conditions of his detention were appalling, and that his detention lacked justification and its length was unreasonable. 7.     In addition to reiterating the complaints made by the first applicant, the second applicant complained that Mr Magnitskiy had died because of the absence of medical care in detention and that the criminal proceedings against him had been unfair. 8.     The third applicant complained, in particular, that the State had failed to secure her son’s life. She also alleged that he had been ill-treated by prison officers, and that the Government had failed to effectively investigate the circumstances of her son’s death. Lastly, she complained under Article   6 of the Convention about his posthumous conviction, and alleged a violation of the principle of the presumption of innocence enshrined in Article 6   §   2 of the   Convention. 9.     On 28 November 2014 the Government were given notice of the aforementioned complaints, and the remainder of the two applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The first and second applicants were born in 1972. Prior to Mr   Magnitskiy’s arrest, they lived together in Moscow. After Mr   Magnitskiy’s death, his widow, the second applicant, moved to London. 11.     The third applicant was born in 1952 and lives in Moscow. A.     Factual background 12.     The first applicant was the head of the tax practice at the Moscow office of Firestone Duncan, a Moscow-based company providing legal, tax, accounting and audit services to foreign investors in Russia. Its clients included Russian subsidiaries of the Hermitage Fund (“Hermitage”), at the time the largest foreign investment fund in Russia. Its Moscow office was headed by Mr W. Browder. 13.     In 2006 three Russian subsidiaries of Hermitage, Parfenion Limited, Rilend Limited, and Makhaon Limited, generated substantial revenue and, as a result, paid taxes in the amount of 5.4 billion Russian roubles (RUB) (approximately 230 million United States dollars (USD)). Firestone Duncan provided legal and accounting services to these three companies. 14.     In May 2007 the investigation department of the Ministry of the Interior in Moscow opened criminal case no. 151231 into tax evasion allegedly committed by the head of Kameya Limited (“Kameya”), also a client of Hermitage. 15.     On 4 June 2007, in the course of the investigation into the activities of Kameya, several officers from the investigation department, including officer K., searched the Moscow offices of Firestone Duncan and those of Hermitage’s advisers, Hermitage Capital Management. Among other items of evidence they seized corporate documents and company seals not related to Kameya. 16.     On 13 June 2007 Major Ka. from the Investigative Committee of the Ministry of the Interior was appointed as the chief investigator of the case and took custody of the materials seized during the search. 17.     Hermitage Capital Management challenged the search in a complaint to the Moscow Prosecutor’s Office. Major Ka.’s refusal to return any of the seized documents led to the filing of further complaints by Firestone Duncan. 18.     On 16 October 2007 Hermitage’s subsidiaries received letters from a joint-stock company called Logos Plus (“Logos Plus”) informing them that on 30 July 2007 a commercial court had transferred the ownership of the three subsidiaries to another company and that Logos Plus had lodged claims against them for billions of Russian roubles with reference to that judgment. 19.     According to the first applicant, the subsidiaries had never had any relations with Logos Plus. He had searched in the Russian Unified State Register of Legal Entities and discovered that pursuant to the judgment of 30 July 2007 and without Hermitage’s knowledge, the three subsidiaries had been registered in the name of the new owner, Pluton Limited. 20.     Following the discovery of these legal developments, lawyers acting on behalf of the subsidiaries complained to the chair of the Investigative Committee of the Prosecutor General’s office, the Prosecutor General and the head of the Department of Internal Affairs of the Ministry of the Interior. The complaints contained accusations against the police officers, in particular officer K. and Major Ka., who had seized the documents and seals and had allegedly used them to perpetrate the fraud. The lawyers stated that the re-registration of the three subsidiaries in the name of new owners and the commercial court proceedings against them had been unlawful. They asked the authorities to open a criminal investigation into the misappropriation of the three subsidiaries. 21.     On 11 December 2007 the office of the Prosecutor General declined to open any such investigation and forwarded to the local prosecutor’s office in St Petersburg the complaints concerning the allegedly fraudulent court proceedings. On 17 January 2008 the St Petersburg Prosecutor’s Office decided against opening a case on the grounds that no crime had been committed. Similar decisions were taken by other authorities to which complaints had been made. 22.     In the meantime, in December 2007 the newly appointed managers of the three subsidiaries applied for a series of tax refunds, arguing that the three companies had made no profits in 2006, that they thus owed no taxes and the taxes paid in 2006 should be refunded. 23.     Two applications, for tax liabilities totalling over RUB 1.7 billion (over 47 million euros (EUR)), and another five applications, for a total of over RUB 3.6 billion (more than EUR 100 million), were approved and signed off by the tax authorities. 24.     On 26 December 2007 the sum of RUB 5.4 billion was transferred from the Russian Treasury to the subsidiaries’ recently opened bank accounts at Universal Savings Bank (USB) and Intercommerz bank. In the first quarter of 2008 the funds were distributed from the USB accounts to the accounts of third parties in various banks in Moscow. Shortly thereafter, USB initiated the procedure for its voluntary liquidation. All its records were destroyed when, according to the Ministry of the Interior, a van transporting them crashed and exploded. 25.     In December 2007 and January 2008 lawyers acting on behalf of the three subsidiaries appealed against the judgments involving Logos Plus’s claims. In January and February 2008 those judgments were overturned. In addition, an appeal against the judgment of 30   July 2007 transferring the three subsidiaries to new owners was also upheld. Challenges to the re-registration of the companies, with a view to preventing their liquidation and returning control to the former owners, were unsuccessful. 26.     On 5 February 2008 a special investigator from the Investigative Committee of the Prosecutor General’s office opened a criminal investigation into the allegations made by Hermitage concerning the theft of the three subsidiaries. 27.     In June 2008 Hermitage’s lawyers obtained the full details of the tax rebate granted in December 2007. The first applicant concluded that the subsidiaries had been stolen in order to embezzle taxes paid in 2006. As a consequence of that discovery, Hermitage and the legal representatives of the three subsidiaries lodged further complaints with the authorities, naming those they claimed were responsible for the embezzlement. 28.     On 5 June 2008, in an interview with the special investigator, the first applicant made statements pertaining to the change of ownership and the tax refund in relation to the three subsidiaries, including the alleged criminal misconduct and abuse of office by officer K. and Major Ka. 29.     On 21 July 2008 Hermitage lodged a criminal complaint outlining fraudulent acts allegedly committed against the three subsidiaries and the role of Russian officials in perpetrating and concealing them. Those allegations were made public and the first applicant discussed the complaints with representatives of the mass media. B.     Arrest and detention of Mr Magnitskiy 1.     Circumstances preceding the arrest 30.   On 23 July 2008 the head of the Investigative Committee of the Ministry of the Interior joined the Kameya case with three other tax evasion cases, suggesting that the investigated offences had been committed by a criminal group. 31 .     One of the joined cases, which had been opened in 2004, concerned the activity of two companies, Dalnyaya Step Limited (“Dalnyaya Step”) and Saturn Investments Limited (“Saturn”). A tax audit of these companies revealed that they had wrongfully applied exemptions from local and regional taxes, in particular by using sham employment of disabled persons to obtain a 50% income tax discount. Both companies were founded and headed by Mr Browder. 32.     On 14 and 17 November 2008 the first applicant, who had allegedly given advice to Mr Browder on legal and tax matters relating to the activity of Dalnyaya Step and Saturn, was summoned as a witness in that criminal case. The investigator who served the summons did not find him at his registered address and left the summons in the letterbox. 33.     On 18 November 2008 the Tverskoy District Court of Moscow (“the District Court”) authorised a search of the first applicant’s flat. The search warrant stated that Mr Magnitskiy had assisted Dalnyaya Step and Saturn with the preparation and filing of tax declarations and accounting reports used in illicit tax evasion. 2.     Arrest and remand in custody 34.     On 24 November 2008 the police searched the first applicant’s flat and took him to appear before the investigating authority. On the same day he was arrested on suspicion of having assisted tax evasion and placed in police custody in Moscow. 35.     The next day an investigator interviewed him initially as a suspect, and then as an accused. The first applicant was charged with two counts of aggravated tax evasion committed in conspiracy with Mr Browder in respect of Dalnyaya Step and Saturn. 36 .     The accusations were based on documentary evidence relating to the payment of taxes by those companies and statements by several disabled persons who had confessed to sham work for the two companies. One of them testified that he had been in contact with Mr Magnitskiy, had received money from him and had assisted him in finding other sham employees. He also said that Mr Magnitskiy had told him what to say if questioned by the authorities and had asked him to participate in a tax dispute as a witness. 37.     During the interview the first applicant argued that he had neither prepared nor submitted tax declarations on behalf of those companies, that he had not arranged for the employment of the disabled persons and that they had not pretended to work, but had actually worked for the companies. 38 .     On the same day the investigator applied to the District Court asking it to authorise the detention of the first applicant. In support of the charges the investigator referred to documentary evidence citing the tax audit conclusions and statements by the disabled sham employees (see paragraph 36 above). The investigating authorities noted that during a tax inquiry which had preceded the criminal investigation, Mr Magnitskiy had influenced witnesses, and that he had been preparing to flee abroad. In particular, he had applied for an entry visa to the United Kingdom and had booked a flight to Kyiv. Those allegations were supported by a police report about undue influence on witnesses; the Federal Security Service’s report concerning the first applicant’s application for an entry visa to the United Kingdom; statements by a travel agent who had booked a flight for him; and other pieces of evidence. 39 .     On the following day the District Court examined the detention request in the presence of the first applicant and his lawyer, who pleaded that his client had had no intention to obstruct the investigation or to abscond. Having found those assertions rebutted by the material in the case file, the court ordered the first applicant’s detention until 24 January 2009. The detention order referred to the gravity of the charges, and the findings that the first applicant had influenced witnesses, had not been residing at his registered address when the investigator had attempted to summon him, and had been preparing to flee abroad. The court also held that if released he could continue tampering with the investigation, abscond or reoffend. 40.     On 15   December 2008 the Moscow City Court (“the City Court”) upheld the detention order on appeal. 3.     Extension of pre-trial detention (a)     Extension order of 19 January 2009 41 .     On 19 January 2009, at an investigator’s request, the District Court extended the first applicant’s detention until 15   March 2009. It stated that the grounds on which he had been placed in detention still remained valid and there were no reasons to alter the preventive measure. 42.     After an appeal by the first applicant the Moscow City Court upheld the detention order on 16 February 2009. (b)     Extension order of 13 March 2009 43.     At the hearing on 13 March 2009 concerning a new detention extension request the defence claimed that the first applicant had not intended to flee from the investigation or the court. That argument was supported by a letter from the British Embassy in Moscow dated 4 March 2009, stating that the Embassy had no record of a visa request being submitted by or granted to the first applicant. The defence also contended that the investigation had not been carried out with the necessary diligence and that no investigative measures involving the first applicant had been performed for a long time. 44.     The investigative authority continued to refer to the risk of the first applicant’s absconding, influencing witnesses or otherwise hampering the administration of justice, if released. They also argued that the length of the investigation was justified by the complexity of the case. 45 .     The District Court dismissed the arguments of the defence. It noted that the letter from the Embassy had not been signed and that credible evidence demonstrated the first applicant’s intention to leave Russia. It further noted that the criminal case file was voluminous and complex. There had been no periods of inactivity in the course of the investigation. In conclusion the court stated that the grounds on which the first applicant had been placed in detention still remained valid and that therefore there were no reasons to alter the preventive measure. It extended the first applicant’s detention until 15   June   2009. 46.     The detention order was upheld on appeal by the City Court on 22   April 2009. (c)     Extension order of 15 June 2009 47. On 15 June 2009, at the hearing concerning the further extension of the first applicant’s detention, the parties chiefly repeated the arguments they had raised previously. The defence asked the District Court to consider positive references about the first applicant’s personality and also his family situation, namely that he was the breadwinner for two minor children and his wife. 48 .     In its decision delivered on the same date the court refused to address the argument that there was no risk of the applicant’s absconding, having already dismissed that argument in the previous detention orders. It found that the length of the criminal proceedings was justified by the complexity of the case and that the investigating authorities were working on the case with the necessary diligence. Lastly, the court noted the information about the first applicant’s personality and his family situation, but concluded that it could not override the risk of his absconding, influencing witnesses or interfering with the course of the investigation. In the light of the above, his detention was extended until 15 September 2009. 49.     On 3 August 2009 the Moscow City Court dismissed an appeal by the first applicant against the detention order. (d)     Extension order of 14 September 2009 50 .     On 14 September 2009 the District Court extended the first applicant’s detention until 15 November 2009. The detention order was based on the same reasoning as that employed in the previous extension orders because, according to the court, it still remained valid. 51.     The first applicant challenged the above decision on appeal, but died before the hearing in the Moscow City Court scheduled for 2   December 2009. (e)     Extension order of 12 November 2009 52.     On 7 October 2009 the investigating authority served the first applicant with a new bill of indictment, having accused him of tax evasion committed in conspiracy with Mr Browder in respect of Dalnyaya Step and Saturn, by means of a fraudulent claim by both companies for tax benefits based on the sham employment of disabled persons and wrongful exemptions from local and regional taxes. Having expressed their intention to invest in the economy of the Kalmykiya Republic, Russia, the companies had allegedly invested RUB 1,000 (approximately EUR 20) while at the same time claiming full relief from tax payment (0% instead of 19% for capital gains tax). Mr Magnitskiy was interviewed and then informed that the investigation had been completed. On 20 October 2009 he started reading the case file. 53.     On 3 November 2009, referring to the need for the first applicant to complete his study of the case file, the authorities asked the District Court to extend his detention until 26 November 2009. 54.     At the hearing on 12 November 2009 the defence refused to comment on the request, claiming that they had not had time to examine the related materials. 55.     The District Court found the defence claim to be ill-founded. Having cited the risks of the first applicant’s absconding, putting pressure on witnesses or otherwise tampering with the investigation, and the need for him to complete his study of the case file, the District Court authorised a further extension. C.     Conditions of detention 56.     Following his arrest the first applicant was detained in police detention facility no. 1 and remand prisons nos. 77/1, 77/2 and 77/5 in Moscow. He was moved on at least twenty occasions between various cells in those facilities. 57.     The conditions of his detention in the remand prisons were the subject of an internal inquiry carried out in late 2009. Its findings were reflected in a report of 1 December 2009 (see paragraph 100 below). 58 .     According to the first applicant, from 2   December   2008 to 28   April 2009 he was kept in poor conditions in remand prison no. 77/5. The facility was severely overcrowded. He usually shared cells of between 20 and 30   sq.   m with eight to fifteen other inmates. On certain occasions he did not have an individual sleeping place as the number of inmates exceeded the number of bunks. The cells were poorly lit and ventilated and were in a deplorable sanitary condition. A lavatory pan was separated from the rest of the cell by a metre-high partition not offering any privacy. Inmates were allowed to take a shower for ten minutes once a week. They also had a daily walk of no more than an hour in a small prison yard. The food was of extremely poor quality. On a number of occasions the first applicant found worms in the food. D.     Medical care received by the first applicant in detention 59.     On 14 May 2009 Mr Magnitskiy complained to a prison doctor of severe back pain extending as far as his chest and stomach. The pain was particularly sharp if he took a deep breath. Having diagnosed osteochondrosis (degenerative disease of intervertebral discs in the vertebral column) with a pain syndrome similar to that of intercostal neuralgia, the doctor prescribed a spasmolytic, painkillers and diclofenac. 60.     According to a medical opinion received at a later stage (see paragraph 128 below), diclofenac was contraindicated in Mr Magnitskiy’s case because it could induce acute pancreatitis. 61.     Responding to repeated complaints by the first applicant of searing back pain, on 1   July 2009 a physician in remand prison no.   77/1, Mr   So., examined him. Having obtained the results of an abdominal ultrasound scan, the doctor noticed gallbladder concrements and an enlarged pancreas and concluded that there were signs of chronic pancreatitis and calculous cholecystitis. Drug treatment and consultation by a surgeon were prescribed. 62.     Eleven days later a surgeon from a prison hospital, Mr G., examined the first applicant and diagnosed cholelithiasis and chronic cholecystopancreatitis, confirming the earlier diagnosis. The surgeon prescribed drug therapy, a “control ultrasound examination in a month” and “planned surgical treatment”. 63.     On 18   July 2009 the first applicant again complained of pain in the upper abdomen. On examination, the abdomen was moderately swollen and there was pain in the gallbladder projection areas and the pit of the stomach. 64.     A week later Mr Magnitskiy was transferred to remand prison no.   77/2. According to the applicants, the prison did not have the medical facilities required for Mr Magnitskiy’s condition, such as an ultrasound scanning machine and surgical equipment. 65 .     In remand prison no. 77/2 the first applicant received no medical assistance, while his medical records referred to his suffering from pancreatitis and contained a recommendation for surgery. On the day following his admission Mr Magnitskiy asked the prison director, Mr   Kom., in writing for a medical visit. Two weeks later, still waiting for a response to his earlier request to see a doctor and citing his progressively worsening health, the first applicant made a written request for an appointment with the prison director. The request went unanswered. Two days later, on 11 August 2009, he made another written request to see a doctor, noting the delay in performing his medical examination. That request was also left without a response. 66 .     For the first six weeks of his detention in remand prison no. 77/2, the first applicant was not given any medicines. On 14 August 2009 he asked for permission to receive medicines from his relatives. When the third applicant brought medicines to the facility on 17   August   2009, they were given to another prisoner by mistake. The medicines she had brought were finally delivered to Mr Magnitskiy on the day following her meeting with the chief of the medical unit in the remand prison, Dr D.K., on 4   September 2009. 67 .     On 19 August 2009 the first applicant’s lawyers complained to the prison director and senior investigator, reminding them of Mr Magnitskiy’s diagnosis and requesting an immediate ultrasound scan and a report on the treatment prescribed for their client. The senior investigator rejected that request on 2 September 2009, explaining that a refusal to carry out medical examinations could be appealed against to a prosecutor or a court, but that the law did not impose any duty on an investigator to monitor inmates’ health, and that it was for the accused to request medical help in a detention facility. No response from the prison director followed. 68 .     On 24 August 2009, a month after his transfer to remand prison no.   77/2, the first applicant suffered from a sharp pain coming from the solar plexus region. By that time he was permanently experiencing severe pain which prevented him from lying down. In his diary Mr Magnitskiy described the events of 24   August 2009 as follows: “The disease has become so acute that I could no longer lie in bed. At approximately 16:00, my fellow inmate began kicking the door, demanding for me to be taken to a doctor. The warder promised to ask a doctor to come but he didn’t appear despite the recurrent demands of my cellmate. I was taken to a doctor five hours later. I informed the doctor about my illness and complained that during my confinement in remand prison no. 77/2 I had never been examined by a doctor. She was very displeased ... stating that I had already been given medical care [at facility no. 1] and asking: ‘Do you think that we are going to treat you every month?’ She advised me to get an appointment with a surgeon.” 69.     The first applicant asked Dr D.K., the chief of the medical unit in the remand prison, for an examination by a surgeon with a view to a decision on an urgent ultrasound scan and surgery. No response was forthcoming. 70 .     On 26 August 2009, as Dr D.K. was carrying out a round of the cells, the first applicant complained that he was not receiving treatment. He was told that the prison did not have the equipment for medical examinations. 71.     On 31 August 2009 the first applicant again spoke to Dr   D.K., insisting on an ultrasound scan and surgery. He was promised the planned surgery after he had been released, as the facility was not under an obligation to perform it. 72.     Two days later Dr D.K., who had asked the authorities to transfer Mr   Magnitskiy to remand prison no. 77/1 for a medical examination, confirmed that the transfer could take at least another three weeks owing to “transport and security problems”. 73 .     The first applicant’s lawyers appealed to the Prosecutor General, complaining that Mr Magnitskiy had been denied a proper medical examination, adequate general medical care and surgery. The complaint was dismissed by an official from the Prosecutor General’s office. On 30   September 2009 the senior investigator once again rejected a request for an ultrasound scan. 74.     On 7 October 2009, when the first applicant was admitted to the medical unit of the remand prison in view of his steadily worsening condition and for the purpose of carrying out “an examination and treatment”, the prison director and the chief of the medical unit issued a certificate to the first applicant’s lawyers indicating that he was medically fit to remain in detention. 75.     On 11 November 2009 the prison administration issued another certificate stating that Mr Magnitskiy was diagnosed as having gallstones, cholecystitis and acute pancreatitis and that he was being treated in the medical unit of remand prison no. 77/2. The certificate stated that his health was satisfactory and that he could participate in court hearings and investigative measures. 76.     On the night of 12 November 2009, after Mr Magnitskiy had returned to the prison from the court hearing, his condition drastically deteriorated. He wrote to Dr D.K., describing intensifying acute pain in the pancreatic gland area, as well as the appearance of a distressing pain in the liver accompanied by vomiting. He again asked for an ultrasound scan. 77.     At approximately 10 p.m. on 13 November 2009 the first applicant complained of being in an extremely poor condition. A medical assistant admitted him for inpatient care with the following diagnosis: chronic cholecystitis and chronic pancreatitis with acute exacerbation. He was “prescribed treatment similar to the previous treatment”. The prison doctor Ms L., the doctor attending to him, was on leave at the time. E.     Circumstances surrounding Mr Magnitskiy’s death 1.     Transfer to remand prison no. 77/1 and episode of acute psychosis 78.     When Dr L. came back to work on Monday 16 November 2009, she examined the first applicant at 9 a.m. She recorded that his condition was moderately severe and that he had complained of girdle pain in the right hypochondrium. He was also reported to be vomiting every three hours. At 9.30 a.m. Dr   L. noted the aggravation of cholecystopancreatitis and decided to urgently send the first applicant to the surgical unit in remand prison no.   77/1. 79 .     An ambulance was called to transfer Mr Magnitskiy at 2.29 p.m. The emergency call chart indicated that the ambulance arrived at the remand prison at 2.57 p.m., but its crew had to wait for an escort into the facility for two hours and thirty-five minutes. 80 .     The first applicant left remand prison no. 77/2 at approximately 5.10   p.m. He arrived at remand prison no. 77/1 at approximately 6.30 p.m. 81.     Upon admission to remand prison no. 77/1, Mr Magnitskiy was examined by a doctor, Ms A.G., in the medical room of the facility reception section. She confirmed the diagnosis of acute calculous cholecystitis and acute pancreatitis and described his status as moderately severe. The first applicant was recommended admission to the surgical department for inpatient treatment. 82 .     Dr A.G. later described the events of that evening (a similar record was entered in the first applicant’s medical history). She was filling in the medical records while the first applicant remained in a metal cage in the same room. She noticed that his behaviour “became inappropriate ... he raised his voice and was aggressive”. She moved to the room next door to complete her work, but heard him saying “now they will kill me here, I am innocent in this case, why did they bring me here?” She went back to the room where he was and saw him running around inside the caged area. She was joined by her colleague Dr N. Dr A.G. suspected acute psychosis and ran to the headquarters to tell an on-duty officer to call the reinforcement team. Eight guards arrived at about 7.30 p.m. She also phoned the emergency medical service to request a psychiatric first-aid team, then went back to the room where the patient was still in the cage, with handcuffs put on him by the guards. Another doctor, Mr Ma., joined them at that time. Dr   A.G. ordered an injection to the first applicant to alleviate the pain in his stomach. An entry in the medical record at 7 p.m. indicated that his final diagnosis was “acute psychosis and delirium of persecution”. 83.     Guards present at the scene of the incident later testified that the handcuffs had been removed approximately half an hour later when the first applicant had calmed down and his behaviour had returned to normal. 84 .     Two official documents, recording that handcuffs and a rubber truncheon had been used, were prepared at the time. The first report signed by officer Kuz. indicated that at 7.30 p.m. Mr Magnitskiy had been handcuffed to prevent suicide or self-harm. The second report signed by the same officer and two witnesses stated that officer Kuz. had used a rubber truncheon against the first applicant to prevent suicide or self-harm. Both reports were approved by the head of the detention facility. 85.     Later, officer Kuz. and witnesses to the events claimed that a rubber truncheon had not been used and that it had been mentioned in the report because of a typing error. 2.     Arrival of a psychiatric emergency team and death of the first applicant 86.     The subsequent versions of events put forward by detention facility officials, prison medical personnel and psychiatric team members differ concerning the circumstances of the first applicant’s death. 87 .     In particular, in the course of the proceedings relating to Mr   Magnitskiy’s death, members of the psychiatric emergency team testified to investigators that when they had been allowed to see him, after having been forced to wait for more than an hour in front of the detention facility building, he was already dead. They had found him, half-dressed, sitting on the floor in a cell with his back against the bunk, his arms spread out, the left leg stretched out, and the right leg bent at the knee. There had been a large pool of urine under him. They had noticed pronounced traces from handcuffs on his wrists. The doctors concluded that the first applicant had already been dead at least for fifteen to thirty minutes as his corpse was already in partial rigor mortis. 88.     The members of the psychiatric emergency team included the following information in their report: “... the team arrived at the facility’s gates at 8 p.m. on 16 November 2009. [There was] restricted access to the premises. When we entered the medical unit of the facility at 9.20 p.m., officers informed [us] that the patient had died ... Diagnosis: the patient died before the arrival of the emergency team.” 89.     Officer Mar. from remand prison no. 77/1 indicated that when the emergency psychiatric team had entered, the first applicant had still been alive but had been sweating and experiencing difficulty breathing. However, on another occasion officer Mar. testified that prior to the arrival of the psychiatric emergency team he had witnessed a medical assistant administering artificial lung ventilation to the first applicant using a bag-valve mask. The first applicant had then been placed on a stretcher and taken to the intensive care ward upon the orders of Dr A.G. He had not met or seen the members of the psychiatric emergency team. 90.     A prison medical record drawn up by the prison surgeon stated as follows: “at 9.15 p.m. [Mr Magnitskiy] was examined again owing to the worsening of his condition. During an examination performed by psychiatrists the patient lost consciousness. A prison medical assistant started resuscitation (closed-chest cardiac massage, artificial ventilation ...).” According to this record, at 9.20 p.m. the first applicant was transferred to a special medical ward in building no. 7, where for thirty minutes prison staff, including Dr A.G., continued their unsuccessful attempts to revive him. He was declared dead at 9.50 p.m. that evening. The death confirmation statement was signed by Dr A.G., medical assistant V., officer Mar. and two other prison officials, including Captain Pl. 91.     Captain Pl. was questioned on 19 January 2010 and stated that at around 9 p.m. on 16 November 2009 he had been warned that a detainee in a serious condition was being transferred to the resuscitation unit of the hospital. Around the same time he had received a call from officer Mar., who had told him to write a report on a detainee’s death. As soon as he had written the report, he had gone to the resuscitation unit and had signed the death confirmation statement. 92.     Dr A.G. stated that on 16 November 2009, at about 9.20   p.m., she had received a call and had been told that the first applicant had felt sick. She had gone to the cell, where she had found him lying on the floor. Officer Mar. had been beside him and the medical assistant had been providing resuscitation. On another occasion she stated that the on-duty doctor, N., had run in to perform resuscitation procedures. In her statement of December 2009 she noted that she had tried to feel a pulse and had only found it on the carotid artery; there had been no pulse on the radial arteries. She had given orders to immediately take the patient to the intensive care ward, which she estimated had taken about five minutes. She stated that together with the duty doctor in the intensive care ward she had attempted intensive care, through closed-chest massage, artificial lung bag-valve mask ventilation, administration of adrenaline and atropine. As part of attempts to resuscitate Mr Magnitskiy and because it was impossible to locate any peripheral veins, Dr   A.G. had personally administered injections of adrenaline and atropine to the root of his tongue. They had had no effect and at 9.50 p.m. the patient had been pronounced clinically dead. 3.     Death confirmation certificate 93 .     On the day of Mr Magnitskiy’s death, Dr   A.G., officer Mar., Captain Pl. and several other prison officials prepared the death confirmation certificate. It stated that the first applicant had died at 9.50 p.m. on 16   November 2009 owing to toxic shock and acute cardiovascular insufficiency. It gave the following diagnosis: “Cholelithiasis. Acute calculous cholecystitis. Acute pancreatitis. Pancreonecrosis? Acute psychosis. Closed craniocerebral injury?” 94.     A copy of the certificate provided to the second and third applicants and their lawyers showed that it had been faxed from remand prison no.   77/1 at 12.13 a.m. on 17 November 2009 to a fax number registered for the District Court. 95.     The third applicant insisted that a copy of the death confirmation certificate which she had later obtained from investigators appeared to be identical to those described above, but with two important differences. In particular, the document was not stamped and the reference to the closed craniocerebral injury was deleted. F.     Investigation into Mr Magnitskiy’s death 1.     On-site examination 96 .     An investigator from the Investigative Committee arrived at remand prison no. 77/1 and prepared an on-site examination record at 12.30 a.m. on 17   November 2009. He recorded and photographed the first applicant’s body lying on the bed with abrasions on the wrists. 2.     Autopsy examination 97 .     In the morning of 17 November 2009 a medical assessor from the Forensic Medical Examination Office performed an autopsy (for her conclusions see paragraph 123 below). Requests from the second and third applicants for an independent medical examination of the body and for access to his blood and tissue samples were dismissed by the investigator. 98.     Mr Magnitskiy was buried on 20 November 2009. 3.     Internal inquiry 99.     On 17 November 2009 the Interfax news agency published a news item describing the circumstances of the first applicant’s death. On account of that publication the head of the Federal Service for the Execution of Sentences ordered an internal inquiry into the events to be carried out by an ad hoc commission of inquiry headed by his deputy. 100 .     On 1 December 2009 the commission of inquiry prepared a report focusing on the conditions of Mr Magnitskiy’s detention and the quality of the medical care afforded to him. In a summary fashion the report noted that detention conditions in remand prisons nos. 77/1 and 77/5 had fully complied with domestic standards. Detainees were afforded 4 sq. m of floor space each; their cells had been adequately furnished, and had been maintained in good sanitary conditions. No information about the prison cells hosting the first applicant, their floor space and the number of inmates was included in the report. The report further stated that unlike the aforementioned facilities, remand prison no. 77/2 was overcrowded. As a result, for thirty-six days the first applicant had had insufficient personal space. A detailed description of the conditions of his detention in that facility was provided. 101 .     As regards the quality of medical care in detention, the report said that the authorities had made almost no entries in the first applicant’s medical file, particularly from 24   July to 7 October 2009. Therefore, it was difficult to assess the adequacy of his treatment. However, certain failures were obvious. For example, the first applicant had not received the recommended ultrasound examination or the necessary blood tests, and had not been seen by a surgeon. 102 .     The shortcomings identified were explained by the mismanagement of remand prison no. 77/2, in particular the understaffing of its medical unit and the absence of appropriate supervision by the Moscow prison authorities. The report recommended the disciplinary punishment of the officials responsible. 4.     Criminal investigation 103. Two days after Mr Magnitskiy’s death, on 18 November 2009, BBC Russia published an article citing, in particular, the head of the Moscow office of the Investigative Committee of the Prosecutor General’s office, Mr   A. Bagmet. According to the reporter, Mr Bagmet stated that “[his] office was carrying out an inquiry into the death of Mr Magnitskiy; however, the grounds calling for the opening of a criminal case ... ‘have not yet been identified’.” 104.     On the following day an investigator from the Investigative Committee of the Prosecutor General’s office in the Preobrazhenskiy District of Moscow recommended initiating a criminal investigation into the circumstances of Mr Magnitskiy’s death. He stated: “Taking into consideration the fact that an investigation may reveal evidence of a crime under Article 105 [homicide] and Article 111 § 4 [grave injury to health] of the Criminal Code, I deem it advisable to register the report in the Crime Report Registration Book (KRSP) and to conduct an investigation pursuant to Articles 144, 145 of the Criminal Code of the Russian Federation.” 105 .     Six days later,     on 24 November 2009, the Investigative Committee of the Prosecutor General’s office in the Preobrazhenskiy District of Moscow opened a criminal case against unknown officials from the Moscow prison service. Its scope was limited to offences under Article 124 § 2 of the Russian Criminal Code (negligently failing to render aid to a sick person resulting in death) and Article 293 § 2 of the Code (neglect of duty resulting in the death of a person). 106 .     At some point later the second and third applicants were granted victim status in the criminal proceedings. The first applicant’s lawyer immediately asked the investigating authority to secure evidence in the case, in particular records from CCTV cameras installed in the remand prisons. 107.     In the course of the investigation the authorities interviewed a number of witnesses (see paragraphs 36 and 38 above) and ordered several expert examinations (see paragraphs 123-135 below). 108.     On 5 May 2010 the case was transferred to the Central Investigation Department of the Investigative Committee of the Prosecutor General’s office. The head of the Investigative Committee stated in an interview to a “Russian newspaper” on 7   September 2010 that the Committee was working on the case and that they had no grounds to believe that Mr   Magnitskiy’s death had been connected to the conduct of officials responsible for his criminal prosecution. 109.     In January 2011 the Investigative Committee became an independent body reporting to the President of Russia. It continued the criminal investigation in the case. 110 .     In February 2011 investigators examined the crime scene and asked the director of remand prison no. 77/1 for CCTV records from 16 November 2009. In March 2011 the prison director responded that there had been no video recording in the facility. 111.     Experts from the Centre for Forensic Medical Examinations of the Ministry of Health Care and Social Development of Russia, in their report no. 555/10 of 15 June 2011, established a direct causal link between Mr   Magnitskiy’s death and the failure to provide him with adequate medical care. They also concluded that certain injuries to his body could have been inflicted by a rubber truncheon (for more details see paragraph 134 below). 112 .     On 13 September 2011, on the basis of the above conclusion, the third