CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 novembre 2014

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margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; page-break-inside:avoid; page-break-after:avoid; line-height:200%; font-size:10pt } .s6088A1B { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sA3C7FF3C { margin-top:36pt; margin-left:108pt; margin-bottom:12pt; text-indent:36pt } .s3FA27B1B { margin-top:0pt; margin-bottom:0pt; text-align:left; line-height:115% } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 28 November 2014   FIRST SECTION Applications nos. 32631/09 and 53799/12 Sergey Leonidovich MAGNITSKIY and Natalya Valeryevna ZHARIKOVA against Russia and Nataliya Nikolayevna MAGNITSKAYA against Russia lodged on 11 June 2009 and 21 August 2012 respectively STATEMENT OF FACTS   1.     Application no. 32631/09 was lodged on 11 June 2009 by Mr Sergey Leonidovich Magnitskiy (the first applicant), a Russian national who was born on 8 April 1972. On 26 March 2010 Mr Magnitskiy’s wife, Ms   Nataliya Valeryevna Zharikova (the second applicant), who is also a Russian national and was born on 11 April 1972, applied to the Court, informing it of Mr Magnitskiy’s death on 16 November 2009 and expressing her wish to maintain his complaints and to bring additional claims pertaining to his detention and the criminal proceedings against him. The two applicants were represented before the Court by Mr D. Kharitonov and Mrs E. Oreshnikova, lawyers practising in Moscow. 2.     Application no. 53799/12 was lodged on 21 August 2012 by Ms   Natalia Nikolayevna Magnitskiya (the third applicant), the mother of Mr   Sergey Leonidovich Magnitskiy, the applicant in the first case. She is a Russian national who was born on 13   April 1952. Mrs Magnitskaya was represented by Mr J. Goldston and Mr R. Skilbeck, attorneys from the Open Society Justice Initiative. The circumstances of the cases 3.     The facts of the cases, as submitted by the applicants, may be summarised as follows. 1.     Factual background 4.     The first applicant, Mr Sergey Magnitskiy, 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 (hereinafter Hermitage), at the time the largest foreign investment fund in Russia. 5.     In 2006 three Russian subsidiaries of Hermitage, “Parfenion company”, “Rilend company”, and “Makhaon company” (hereinafter the three subsidiaries), generated substantial revenue and, as a result, paid an extremely large amount of tax ‒ 5.4 billion Russian roubles (approximately 230 million US dollars) ‒ to the Russian treasury. Firestone Duncan provided legal and accounting services to these three companies. 6.     In the summer of 2006 Mr K., an officer from the tax crimes division of the Moscow City Department of the Interior Ministry sent a number of enquiries to Russian banking and financial institutions requesting detailed information about the status and movement of the three subsidiaries’ assets. 7.     On 28 May 2007 the main investigation department of the Moscow City Department of the Interior Ministry opened a criminal case against the Director General of a company called “Kameya”, a client of Hermitage, alleging that he had committed tax evasion. 8.     On 4 June 2007 officers from the main investigation department, including officer K., raided the Moscow offices of Firestone Duncan and those of Hermitage’s advisor, Hermitage Capital Management (hereinafter the HCM company) . The search warrant had been issued on 1 June 2007 by Mr N., an investigator in the main investigation department. The search was conducted in the course of investigations into the activities of Kameya. However, officers seized large numbers of corporate documents and company seals unrelated to Kameya. 9.     On 13 June 2007 major Ka. of the Investigative Committee of the Interior Ministry was appointed as the chief investigator of the Kameya case and so took custody of the documents and materials seized during the search on 4 June 2007. 10.     Following the search of its offices, HCM lodged a complaint with the Moscow Prosecutor’s Office, challenging the lawfulness of the search, as well as the confiscation of documents. Major K.’s refusal to return any of the documents led to the filing of further complaints by Firestone Duncan. 11.     On 16 October 2007 a number of letters arrived at the registered addresses of the three subsidiaries, indicating that a company called “Logos Plus” had lodged claims against them for billions of Russian roubles on the basis of a judgment issued by a commercial court on 30 July 2007 transferring ownership of the three subsidiaries. The applicants insisted that the subsidiaries had never had any relations with “Logos Plus”. Neither Hermitage nor the legal representatives of the three subsidiaries were aware of any pending legal actions. Mr Magnitskiy investigated the Russian Unified State Register of Legal Entities and discovered that, without Hermitage’s knowledge, the three subsidiaries had been registered to new owners pursuant to a judgment of 30 July 2007. The three companies were also re-registered for taxation purposes with Federal Tax Offices nos. 25 and   28 in Moscow. 12.     The applicants stated that the three subsidiaries could only have been transferred to new ownership using the constituent documents, financial documentation, and seals of the three subsidiaries that had been seized during the search on 4 June 2007. 13.     Following the discovery of these legal developments pertaining to the ownership of the three subsidiaries, lawyers acting on their behalf lodged a number of complaints with the relevant authorities, including 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 Interior Ministry. These complaints detailed the alleged fraud that had been discovered by Mr Magnitskiy, lodged accusations against the police officers, in particular officer K. and major Ka. who had seized the corporate documents used to execute the fraud, alleged that the re-registration of the three subsidiaries to new owners and the commercial court proceedings against them had been unlawful, and requested that the authorities open a criminal investigation into the misappropriation of the three subsidiaries. 14.     On 11 December 2007, the Prosecutor General’s office declined to open any such investigation and forwarded to the local Prosecutor’s Office in St. Petersburg the complaints concerning 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 whom complaints had been made. The last such refusal was issued on 14 December 2007 by the Moscow Prosecutor’s office after the complaint had been sent to major Ka. 15.     In December 2007, the newly-appointed officers of the three subsidiaries applied for a series of tax refunds, alleging that the three companies had made no profits in 2006, and thus that they owed no taxes and the taxes paid in 2006 must be refunded. Two applications, for a tax liability totaling over 1.7 billion Russian roubles (RUB) (over 47 million euros (EUR)) submitted to Federal Tax Office No. 25 were approved by four senior officers and signed off by the head of the office, Ms Kh. Five applications, for a total of over RUB 3.6 billion (over 100 million euros) submitted to Federal Tax Office No. 28 were approved on the same day by four senior officers and signed off by the head of Tax Office No. 28, Ms S. The tax refunds were granted despite the absence of confirmation that the court judgments to which the applications referred had become final. 16.     The applicants argued that the aggregated tax refund of over RUB   5.4 billion (over 150 million euros) ‒ that is to say the same amount as the tax on profits paid by the three subsidiaries in 2006 ‒ was at the time the largest tax refund in Russian history. 17.     On 26 December 2007, the sum of RUB 5.4 billion was transferred from the Russian Treasury to the subsidiaries’ new bank accounts (opened two weeks earlier) at Universal Savings Bank (USB) and Intercommerz bank. In the first quarter of 2008 the funds were distributed from the USB accounts into the accounts of third parties in various Moscow City banks. Shortly thereafter, USB initiated its voluntary liquidation. All its records were destroyed when, according to the Interior Ministry, a van supposedly carrying them had crashed and exploded. 18.     In December 2007 and January 2008, lawyers acting on behalf of the three subsidiaries appealed against the judgments involving the “Logos Plus” claims. In January and February 2008 those judgments were successfully overturned. In addition, an appeal against the judgment of 30   July 2007 transferring the three subsidiaries to new owners was also upheld. However, challenges to the re-registration of the companies, to prevent their liquidation and to return control to the legal owners, were unsuccessful. 19.     On 24 December 2007 the applicant had learned that the investigation into the alleged fraudulent transfer of the ownership of three subsidiaries was linked to the investigation of the activities of Kameya and was headed by major Ka. As part of that investigation, on 2 April 2008 officer K. summoned for interview the legal representatives of the original directors of the three subsidiaries. 20.     On 5 February 2008 a special investigator from the Investigative Committee of the Prosecutor General’s office opened criminal investigation no. 374015 into the allegations made by Hermitage concerning the theft of the three subsidiaries. 21.     In June 2008, Hermitage lawyers obtained the full details of the 5.4   billion rouble tax rebate carried out in December 2007. In response to a letter sent by Mr Magnitskiy, the tax authorities provided information about the three new bank accounts opened for the subsidiaries. Mr Magnitskiy also established that, immediately after the accounts had been opened in December 2007, there was an enormous spike in deposits into these new bank accounts, which was exactly equal to the tax bills that the three subsidiaries had paid in 2006. Based on that information, Mr Magnitskiy concluded that the subsidiaries had been stolen in order to embezzle the 5.4   billion roubles previously paid in taxes in 2006. As a consequence of that discovery, Hermitage and the legal representatives of the three subsidiaries lodged further complaints to the authorities, naming those responsible for the embezzlement. 22.     On 5 June 2008, Mr Magnitskiy made statements pertaining to the change of ownership and tax refund by the three subsidiaries in an interview with the special investigator, including the alleged criminal misconduct and abuse of office by officer K. and major Ka. The interview was preceded by a meeting between the special investigator and officer K. Mr Magnitskiy, who objected to the presence of officer K. at his interview, was told that the latter was "providing operational support" to the investigation. 23.     In July 2008 two further criminal complaints were sent to the Prosecutor General’s office and its Investigative Committee on behalf of the three subsidiaries. Mr Magnitskiy assisted in the preparation of those complaints. 24.     On 21 July 2008 Hermitage lodged its first criminal complaint outlining the fraudulent act committed against the three subsidiaries and the role of Russian authorities in perpetrating and concealing it. It described Hermitage’s attempts to demand an investigation by the three government enforcement agencies, and pointed out that the eventual “investigation” of the fraud had been transferred to major Ka., even though he was implicated in the crimes. It also noted the role of officer K. in the fraud, sought his removal from the investigation and gave specific details of other individuals involved in the fraud such as the fictitious directors and the lawyers who represented the three subsidiaries after the transfer of ownership, and pointed to the lack of any activity in the investigation. Hermitage made these allegations public, and Mr Magnitskiy discussed the complaints with representatives of mass media. 25.     On 20 August 2008, the Moscow offices of lawyers representing Hermitage and those of Firestone Duncan (Mr Magnitskiy’s employer) were searched by officers from the Economic Crimes Section of the Kazan Town Department of Internal Affairs and the Moscow City Department of the Ministry. On the same day lawyers from those offices received summonses requiring them to appear for questioning as witnesses in respect of the fraud. 26.     On 10 October 2008, as a result of a report approved by officer K. in May 2008, the Investigative Committee instituted criminal proceedings against the lawyers for allegedly representing the three subsidiaries on the basis of powers of attorney they knew to be false in their legal actions to reverse the fraudulent arbitration court judgments against the three subsidiaries. 27.     On 7 October 2008 Mr Magnitskiy was questioned by the special investigator for a second time in relation to the prosecution of the lawyers acting for the three Hermitage subsidiaries. He reaffirmed the facts and conclusions stated in his previous testimony of 5 June 2008. 28.     On 6 November 2008 a Deputy Chief of the police Investigative Committee appointed a team of police officers to form a new investigative group in the ongoing investigation into the fraudulent tax refund. The team included officer K., and his two subordinates and officers Kr., T. and D. Six days later, on 12 November 2008, the second team was formed for the purposes of carrying forward the existing investigations into tax evasion. The order again appointed officer K. and his three subordinates to carry out the work of the group. The two groups were to be headed by senior investigator S. 2.     Arrest and detention of Mr Magnitskiy 29.     On 18 November 2008 the Tverskoy District Court in Moscow authorised a search of the flat where the first two applicants lived. The search warrant was issued in relation to investigations into tax evasion in 2006 and the authorised seizure of the seals and of business and financial documents relating to the Hermitage subsidiaries and other companies. The warrant stated that Mr Magnitskiy had assisted those companies in the preparation and filing of tax and accounting reports. 30.     Five days later police officers searched the flat, after which Mr   Magnitskiy was taken to appear before the Investigating Committee. He was arrested on suspicion of tax evasion and thereafter detained at a temporary holding facility (IVS no. 1) of the Moscow Police Department. 31.     On 25 November 2008 Mr Magnitskiy was interviewed initially as a suspect, and then as an accused. He was then charged with two counts of aggravated tax evasion. The allegation was that Mr Magnitskiy had engaged in a conspiracy to fraudulently claim a 50% tax rebate for enterprises employing disabled persons. 32.     Two days after his arrest, Mr Magnitskiy was brought to the Tverskoy District Court which authorised his remand in custody until 24   January 2009. The decision relied on reports from police and security service (FSB) officials alleging that the applicant had taken steps to influence witnesses, had attempted to interfere with the investigation, had booked a ticket on a plane flying from Moscow to Kiev, had started a procedure to obtain a visa from the UK Embassy and could not be found at his registered place of residence when an investigator had summoned him for questioning. The court’s reasoning was that the applicant was liable to reoffend, abscond and obstruct justice. On 15   December 2009, the Moscow City Court upheld the detention order. 33.     Between November 2008 and November 2009 the Tverskoy District Court in Moscow reviewed Mr Magnitskiy’s pre-trial detention six times. Each decision was appealed, and each appeal was rejected. In particular, the extension order on 19 January 2009 relied on the same reasoning employed in the initial detention decision of 26 November 2008. This reasoning was repeated in subsequent detention decisions from 13 March, 15 June, 14   September, and 12 November 2009 and upheld by the appeal court. The court was not convinced by Mr Magnitskiy’s arguments that he had no intention to leave the country, that he had not tampered with witnesses and had not attempted to obstruct justice by any other means. 34.     For instance, while addressing the arguments raised by Mr   Magnitskiy at the hearing on 15 June 2009, the District Court ruled as follows: “The Court will not examine the arguments of the accused party and the defence counsel concerning the circumstances previously taken into account during Mr   Magnitskiy’s arrest ‒ which give rise to the fear that, if released, he will flee ‒ because these arguments have already been assessed by the first-instance and appeal courts, and the decision authorising Mr Magnitskiy’s remand in custody is in force at the present moment, having been upheld on appeal, and has not been revoked by anyone. ... The court takes into account information about the personality of Mr Magnitskiy and his family situation, as well as other arguments raised by him and the defence counsel at the hearing. At the same time, as is apparent from the material in the case file presented to the court, Mr Magnitskiy is charged with two intentional criminal offences, each of them punishable by at least two years’ imprisonment; prior to his arrest [he] tampered with witnesses listed by the investigator in his request [for the extension of the detention] to force [the witnesses] to give incorrect statements; certain suspects in the case, whose relationship to Mr Magnitskiy the investigation has yet to ascertain, absconded; the court therefore finds that the circumstances which gave rise to the conclusion that the accused, if released, will flee the investigation and the court, or will prevent the timely completion of the criminal case..., still persist. There are no new circumstances which could serve as the grounds for amending the measure of restraint to which Mr Magnitskiy is subject.” 35.     Following the hearing on 14 September 2009 the District Court once again cited the gravity of the charges, the first applicant’s alleged attempt to obtain a UK entry visa prior to his arrest, his attempt to book a flight to Kiev and his attempt to influence two witnesses, B. and Ts., as the grounds for his continued detention. At the same time, the court did not attribute evidentiary weight to a certificate issued by the British Embassy confirming that the applicant had not submitted any visa request, and also dismissed the first applicant’s arguments that his passport had been seized during the search of the apartment and that there was no evidence that he had attempted to book a plane ticket to Kiev. Finally, the District Court found manifestly ill-founded the lawyers’ argument that the applicant had been detained in extremely poor conditions which had negatively affected his health. 36.     On 7 October 2009 the investigators served Mr Magnitsky with a bill of indictment. A week later he was interviewed and two days later was informed that the investigation was completed. On 20 October 2009 he started reading the material in the case file. 37.     On 3 November 2009 the senior investigator asked the District Court to extend the first applicant’s detention until 26 November 2009, that is until the expiration of the maximum twelve-month detention period authorised by the Russian law. The first applicant lodged a counter-claim asking to be placed under house arrest. 38.     Following the hearing on 12 November 2009 the Tverskoy District Court accepted the request for extension of the first applicant’s detention, using similar wording to that used on the previous occasions when his detention had been extended. 3.     Conditions of the applicant’s detention 39.     Over the course of his detention from 24 November 2008 to 16   November 2009, Mr Magnitsky was transferred between five detention facilities and moved between cells on at least 20 occasions. Details of the periods and places of his detention are set out in the table below. Period   Facility   24   November to 2 December 2008 Police ward no. 1 (IVS no. 1) in Moscow 2 December 2008 to 21   February 2009   Cells: cell no. 309 (2 to 31 December) cell no. 206 (31 December onwards) detention facility no. 5 in Moscow (SIZO no. 5) 21 February to 3 March 2009   IVS no. 1 3 March to 28 April 2009   Cells: cell no. 417 (3 to 12 March) cell no. 206 (12 to 15 March) cell no. 503 (15 to 28 April) facility no. 5 28 April to 25 July 2009   Cells: cell no. 606 (28 to 29 April and from 2 to 30 June) cell no. 602 (29 April to 2 June and from 30 June to 10 July) cell no. 604 (10 to 17 July) cell no. 508 (17 to 25 July) detention facility no. 1 in Moscow (SIZO no. 1 “Matrosskaya Tishina”) 25 July to 16 November 2009   Cells: cell no. 267 (25 July to 1 September) cell no. 59 (1 to 8 September) cell no. 35 (8 to 10 September) cell no. 61 (10 September to 7 October)   medical unit of the facility: cell no. 708 (7 to 30 October) cell no. 714 (30 October to 13 November) cell no. 305 and 714 (13 to 16 November)   detention facility no. 2 in Moscow (SIZO no. 2 “Butyrka”)   40.     The first applicant provided the following description of the conditions of his detention in facility no. 5. It was severely overcrowded with the first applicant having usually shared a cell of no more than 30 sq. m. with 8 to 15 inmates. On certain occasions the first applicant was detained in cells where he did not have an individual place to sleep 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 remaining part of the cell merely by a meter-high partition not offering any privacy. Inmates were allowed to bathe for ten minutes once a week. The food was of extremely poor quality. On a number of occasions the first applicant found worms in the food. Once a day for 40 ‑ 60 minutes inmates were taken outside for a walk in a small prison yard which measured no more than 15 square meters. The first applicant also stated that he did not receive appropriate medical care in the facility. The medical attention was limited to provision of analgesics. 4.     Medical Care: Diagnosis of Pancreatitis 41.     As is evident from a copy of Mr Magnitskiy’s medical record, on 14   May 2009 he complained to a prison doctor about a severe back pain radiating as far as his chest and stomach. He also stressed that the pain was particularly sharp if he took a large breath. Having diagnosed the first applicant with osteochondrosis with a pain syndrome similar to that of intercostal neuralgia, the doctor prescribed him a spasmolytic and painkillers. The treatment was completed on 25 May 2009. A note recording that the first applicant’s condition had improved was entered in his medical history. 42.     Following Mr Magnitskiy’s complaints about a searing back pain, on 1   July 2009 a physician in detention facility no. 1, Mr So., examined him, authorised an abdominal ultrasound scan and, having obtained the scan results, concluded that there were “echo signs of chronic pancreatitis, calculus cholecystitis”. The record of the ultrasound scan revealed that the doctor had noticed six “concrements” [stones] in his gall-bladder, and that his pancreas measured 31 centimeters in length. 43.     The following day Mr Magnitskiy was prescribed treatment with “Baralgin” and Mezim. An examination by a surgeon, and a further ultrasound scan “in a month’s time”, were also scheduled. 44.     On 2 July 2009 the senior investigator wrote to the head of detention facility no. 1 where the first applicant was staying at the time that it would be advisable to transfer him to detention facility no. 2. The applicants stressed that it was known to the authorities that detention facility no. 2 had neither an ultrasound machine nor the surgery facilities necessary to treat Mr Magnitsky. 45.     On 13 July 2009, while Mr Magnitskiy was still in facility no. 1, a surgeon from the prison hospital, Mr G., examined him and gave a diagnosis of “cholelithiasis, chronic cholecystopancreatitis”, confirming the earlier diagnosis. The surgeon also recommended a “control ultrasound scan in one month” and “planned surgical treatment”. He prescribed Mr   Magnitsky “No-Spa” and “Cerucal”. 46.     The medical record states that Mr Magnitskiy was also examined on 18   July 2009 during the internal round, when he complained of pain in the epigastrium (upper abdomen). On examination, the abdomen was “moderately swollen” and there was “pain in the gallbladder projection areas and the anticardium [pit of the stomach]”. 47.     On 25 July 2009, one week before the prescribed ultrasound scan, which was to be followed by surgery, Mr Magnitskiy was transferred to facility no. 2 which, according to the applicants, lacked the medical facilities needed to care for his medical condition and to administer the treatment including the ultrasound scan and surgery. 48.     Upon arrival at facility no. 2 Mr Magnitskiy received no medical assistance, even though his medical records contained the diagnosis of pancreatitis and the request for surgery. On the day following his admission to facility no. 2 Mr Magnitskiy submitted a written request to the facility director, Mr Kom., for an appointment with a doctor. Two weeks later, still waiting for a response to his earlier request to see a doctor, Mr Magnitskiy made a written request for an appointment with the facility director, giving as the reason his progressively worsening health condition. The request was ignored. Two days later, on 11 August 2009, Mr Magnitskiy made a further written request to the facility director asking for an appointment with a doctor, noting that the time prescribed for his medical examination had passed. This request was also ignored. 49.     For the first six weeks of his detention in facility no. 2, Mr   Magnitskiy was not given any medicines, including those which had been prescribed for him in facility no. 1. On 14 August 2009 he submitted a request to have the medicines brought to him by his relatives. When the third applicant brought the medicines to facility no. 2 on 17 August 2009, they were given to another prisoner in error. The medicines she had brought were finally delivered to Mr Magnitsky on the day following Mrs   Magnitskaya’s meeting with the chief of the facility’s medical unit, Dr   D. K., on 4   September 2009. 50.     On 19 August 2009 Mr Magnitskiy’s lawyers lodged formal complaints with the facility director and senior investigator, reminding them of the previous diagnosis and requesting an immediate ultrasound scan and a report on the treatment prescribed for their client. The senior investigator rejected this request on 2 September 2009, explaining that a refusal to carry out medical examinations may be appealed to a prosecutor or a court, but that the law did not impose on an investigator any duty to monitor the state of health of an inmate, and that it was for the accused to request medical help in a detention facility. No response from the facility director was received. 51.     On 24 August 2009, a month after his transfer to facility no. 2, Mr   Magnitskiy suffered an attack of a sharp pain that he identified as coming from the solar plexus region. By that time, Mr Magnitskiy was permanently suffering from a severe pain which even prevented him from lying down. In his prison diary, Mr Magnitsky described what happened on 24 August 2009: “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 facility no. 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.” 52.     On the following day Mr Magnitskiy wrote a detailed letter to his lawyer describing the episode, including how he had explained to the doctor that he had suffered similar attacks once every three to four months, but that they had recently been recurring repeatedly for four days in a row, and that the analgesics were not helping. 53.     Mr Magnitskiy also complained to Dr D.K., the head of the facility medical unit, asking to be taken to see a surgeon to determine whether an ultrasound scan could be urgently performed and surgery could be scheduled. No response followed. 54.     On 26 August 2009, as Dr D.K. was making a round of the cells, Mr   Magnitskiy complained that he had not been given medical care. He was told “that no medical examination could be carried out in facility no. 2 since it didn’t have the required equipment”. 55.     On 31 August 2009 Mr Magnitskiy was again able to speak to Dr D. K., insisting that he had been prescribed an ultrasound scan and that he required a surgery. He was promised that he would be able to have the planned surgery when he was released, as the facility was not obliged to provide him with it. On the same day Mr Magnitskiy lodged a written complaint with the Head of the Moscow Penitentiary Service. 56.     On 2 September 2009, in response to the petition filed on 19 August 2009 by Mr Magnitskiy’s lawyers, the senior investigator issued an order summarily denying any ultrasound or other medical treatment to the first applicant on the basis that, as an investigator, he was under no obligation to request medical treatment on behalf of detainees. 57.     Two days later Mr Magnitskiy again spoke with Dr D. K., who handed him medicines provided by his mother. The doctor said that he had submitted a written request asking for Mr Magnitskiy’s transfer to facility no. 1 to carry out a prescribed medical examination, but that it would take at least three weeks, due to “transport and security problems”. 58.     On 11 September 2009 Mr Magnitskiy’s lawyers appealed to the Prosecutor General, asking for his intervention on behalf of their client, who had been denied a proper medical examination, adequate medical care, and scheduled surgery. The complaint was rejected on 9 October 2009 by an official from the Prosecutor General’s office. On 30 September 2009 the senior investigator once again denied Mr Magnitskiy’s request for an ultrasound scan. 59.     On 7 October 2009 when the first applicant was transferred to the facility medical unit in view of his steadily worsening condition and for the purpose of carrying out “an examination and treatment”, the facility director and the head of the medical unit issued a certificate to Mr Magnitskiy’s lawyers indicating that he was medically fit to remain in detention. 60.     According to the first applicant’s medical records, on admission to the medical unit Mr Magnitskiy’s abdomen was moderately painful during palpitation. This same was reported on 8, 12, 15 and 19 October 2009. 61.     On 11 November 2009 the administration of facility no. 2 issued a further certificate to Mr Magnitskiy’s lawyers stating that the first applicant “was treated in a hospital, in the medical unit of [facility no. 2] and was diagnosed as [suffering from] gallstones and cholecystitis, pancreatitis in an acute stage.” The certificate stated that “the status of his health is satisfactory” and that “he [could] participate in court hearings and investigative actions. He is physically fit to be held in a detention facility”. 62.     On 12 November 2009 during Mr Magnitskiy’s final court appearance, he and his lawyers applied to have their numerous complaints as to his conditions of detention and lack of medical care attached to the case file. The District Court refused, concluding that the court did not have competence to examine the conditions of detention of an accused party in detention hearings. 63.     Following his return to the detention facility from the court hearing on the night of 12 November 2009, Mr Magnitskiy’s condition drastically deteriorated. He submitted a written complaint to Dr D. K., describing “intensification of an 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 scanning. 64.     At approximately 10 p.m. on 13 November 2009 Mr Magnitskiy complained of extremely poor condition. A medical assistant transferred him for in-patient care with the following diagnosis: chronic cholecystitis, chronic pancreatitis in acute condition. He was “prescribed treatment similar to the previous one”. The prison doctor Ms L., the doctor attending him, was on leave at the time. 5.     Death of Mr Magnitskiy. Versions of events (a)     Events before the death 65.     When Dr L. came back to work on Monday, 16 November 2009, she examined Mr Magnitskiy at 9 a.m. An extract from the first applicant’s medical history states that his condition was “moderately severe” and that he had complained of “girdle pain in the epigastrium, in the right hypochondrium.” The conclusion was “aggravation of cholecystopancreathis” as a result of which Dr L. decided to urgently send the patient to the surgical unit of the prison hospital in facility no. 1. Dr L. also observed that Mr Magnitskiy had “a sharp pain in all the epigastrium sections during palpation". He was also reported to be vomiting "every three hours". An official request for emergency admission to the prison hospital on account of “acute pancreatitis?” and “calculous cholecystitis?” was made on 16 November by Dr D. K., the head of the medical unit of facility no. 2. Permission to transfer Mr Magnitskiy was granted the same day by the Head of the Moscow Penitentiary Service. 66.     Although the decision to urgently send Mr Magnitskiy to the hospital in facility no. 1 was made at 9.30 a.m., according to officials from facility no. 2, an ambulance was not called to transport him until 2.29 p.m. and arrived there half an hour later. The emergency call chart indicates the call was received at 2.29 p.m. due to “acute pancreatitis.” Although the ambulance arrived at facility no. 2 at 2.57 p.m., its crew had to wait for an escort into the facility for 2 hours and 35 minutes. An escort team was formed to transfer Mr Magnitskiy to facility no. 1 on the orders of a senior prison official. Mr Magnitskiy left facility no. 2 at approximately 5.10 p.m. He arrived at facility no. 1 at approximately 6.30 p.m. that evening. The prison official who escorted Mr Magnitskiy later described him as walking “bent down” because he had “a strong pain in the stomach”. The same official recalled that Mr Magnitskiy was handcuffed for the duration of the journey. The handcuffs were only removed on arrival at facility no. 1, where Mr Magnitskiy was examined by a doctor at 6.30 p.m. 67.     Upon Mr Magnitskiy’s admission to facility no. 1, he 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, acute pancreatitis”, and described his status as “moderately severe”. Mr   Magnitsky was recommended admission to the surgical department for in-patient treatment. Dr A.G. later described the events of that evening (a similar record was entered into the first applicant’s medical history). She was filling in the medical records while Mr Magnitskiy remained in a metal cage in the same room. She noticed that Mr Magnitskiy’s behavior “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 inside the caged area running around. She was joined by her colleague Dr N. Dr A. G. suspected phrenoplegia and ran to the headquarters to tell an officer on duty 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. gave orders to give the first applicant an injection in order to diminish the pain in his stomach. An entry in the medical record at 7 p.m. indicates that Mr Magnitskiy’s final diagnosis was “acute psychosis and delirium of persecution” 68.     Guards present at the scene of the incident later testified that the handcuffs were removed approximately half an hour later when the first applicant had “calmed down and his behaviour [had become] appropriate”. Official documents (report on the use of handcuffs on 16 November 2009 and report on the use of a rubber truncheon on 16 November 2009) state that handcuffs were applied at 7.30 p.m. by officer Kuz. The same officer used a rubber truncheon on Mr Magnitskiy. The reports stated that “handcuffs were used due to the threat of the commission of an act of self-injury and suicide. The handcuffs were removed at 8 p.m”. Officer Kuz. drew up a report stating as follows: “Mr Magnitskiy, without any reason, started expressing his intention to commit suicide or an act of self-mutilation, used obscene language in respect of representatives of the facility administration, refused to leave the cell ..., waved his hands around. [He] was warned about the application of special measures and handcuffs.” 69.     After the handcuffs were removed, Mr Magnitskiy remained in the cage until the arrival of a psychiatric emergency team at approximately 9.20   p.m. (b)     Versions of events in statements by various officials and medical personnel 70.     The subsequent versions of events put forward by detention facility officials, prison medical personnel and psychiatric team members concerning the circumstances of Mr Magnitskiy’s death differ. 71.     In particular, members of the psychiatric emergency team subsequently testified to investigators that when they had been allowed to see the first applicant, 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, the left leg stretched out, and the right leg bent in 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 15 to 30   minutes as his corpse was already in partial rigor. 72.     The members of the psychiatric emergency team included the following information in their report: “the team arrived at the facility’s gates at 8.00 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”. 73.     Officer Mar. from facility no. 1 claimed that when the emergency psychiatric team entered, Mr Magnitskiy had still been alive but had been sweating and experiencing difficulty breathing. However, on another occasion he had 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. Mr   Magnitskiy 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. 74.     The prison’s medical record drawn up by the prison surgeon states that "at 9.15 p.m. [the first applicant] was examined again due 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, Mr Magnitskiy was then, at 9.20 p.m., transferred to a special medical ward in building No. 7 where for thirty minutes prison staff, including Dr A.G., continued their attempts to revive the first applicant using cardiopulmonary resuscitation (CPR), artificial ventilation of the lungs, and an adrenaline injection. Mr Magnitsky was declared dead at 9.50 p.m. that evening. The death confirmation statement (“A Confirmation of Death”) was signed by Dr A.G., medical assistant V., officer Mar. and two other prison officials, including captain Pl. 75.     Captain Pl. was interrogated on 19 January 2010 and stated that around 9.00 p.m. on 16 November 2009 he had been warned that a detainee in a grave 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 (“A Confirmation of Death”). 76.     Dr A.G. gave evidence that on 16 November 2009, at about 9.20   p.m., she had received a call and had been told that Magnitsky had felt sick. She had gone to the cell where she had found Mr Magnitsky lying on the floor. Officer Mar. had been beside him and the medical assistant was providing resuscitation. In another statement she stated that “the doctor on duty, N., had run in to perform resuscitation procedures”. In her statement of December 2009 she stated: “I tried to feel a pulse and found it only on the carotid artery, there was no pulse on radial arteries. I gave orders to immediately take the patient to the intensive care ward” which, as she estimated, took about five minutes. She stated that in the intensive care ward, together with the duty doctor, she attempted intensive care, through “closed-chest massage, artificial lung bag-valve-mask ventilation, administration of adrenaline and atropine ... the intensive care had no effect and at 21.50 the patient’s clinical death was pronounced. A death certificate was drawn up”. As part of the attempts to resuscitate Mr Magnitskiy, Dr   A.G. had personally administered the injections of adrenaline and atropine to the root of his tongue, due the impossibility of finding peripheral veins. (c)     Documents concerning the cause of Mr Magnitskiy’s death 77.     The “Confirmation of Death” certified Mr Magnitskiy’s death as having occurred at 9.50 p.m. on 16 November. It gave the following cause of death: “toxic shock; acute cardiovascular insufficiency. Diagnosis: chololithiasis (CLT). Acute calculous cholecystitis. Acute pancreatitis. Pancreonecrosis? Acute psychosis. Closed craniocerebral injury?” 78.     The document then noted that “no signs of a violent death were found”. It was stamped and signed by a number of officials including Dr   A.G., officer Mar. and captain Pl. A copy of the “Confirmation of Death” provided to Mr Magnitskiy’s family and lawyers shows that it was faxed from detention facility no. 1 on 17 November 2009 at 12.13 to a fax number registered for the Tverskoy District Court. 79.     The third applicant, Mrs Magnitskaya, insisted that a copy of the “Confirmation of Death” which she had obtained from investigators appeared to be an identical copy of the first copy (as described above) but with two important differences. In particular, the document was not stamped and the reference to the closed craniocerebral injury was deleted. 80.     On the morning of 17 November 2009 detention facility officials informed Mr Magnitskiy’s lawyers that their client had died of a rupture to abdominal membrane. Later that day, however, in an official statement issued by the Press Sec