ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 20.10.2005<ДЕЛО РОМАНОВ (romanov) ПРОТИВ РОССИИ> [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF ROMANOV v. RUSSIA
(Application No. 63993/00)
JUDGMENT <*>
(Strasbourg, 20.X.2005)
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<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Romanov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr {B.M. Zupancic} <*>, President,
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<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Mr J. Hedigan,
Mr L. Caflisch,
Mrs M. Tsatsa-Nikolovska,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 1 April 2004 and 29 September 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (No. 63993/00) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Ilya Eduardovich Romanov ("the applicant"), on 16 October 2000.
2. The applicant, who had been granted legal aid, was represented by Mr A.A. Rekant, a member of Комитет за Гражданские Права, a Human Rights NGO based in Moscow. The Russian Government ("the Government") were represented by Mr P.A. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that the conditions in the psychiatric ward of the detention facility "Butyrskiy", in which he was confined for over a year and three months, were incompatible with Article 3 of the Convention. He alleged that the length of his detention on remand had been excessive and in breach of Article 5 § 3 of the Convention. He alleged a violation of Article 6 of the Convention in that he had been denied the right to appear before a trial court.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 1 April 2004, the Court declared the application partly admissible.
6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other"s observations.
7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1967. He appears to be currently detained in Ukraine.
A. The applicant"s detention
9. At 8 p.m. on 12 October 1998 the applicant, who was allegedly in a state of intoxication, was arrested in the street by a police patrol and taken to a police station. He was then searched and a certain amount of marijuana was allegedly found on him.
10. At 12:15 a.m. on 13 October 1998 the applicant was detained, by a decision of an investigator of the Akademicheskiy District Police Department of Moscow, on suspicion of illegal acquisition and possession of drugs. The investigator referred to the suppression of crime and prevention of the risk of the applicant"s absconding as the reasons for the decision.
11. On the same day the applicant was charged with the illegal acquisition of drugs for personal consumption and possession.
12. On 15 October 1998 the investigator issued an order to detain the applicant on remand, which was approved by a public prosecutor on the same day. The order referred to the applicant"s personality, the danger posed to the public by the crime with which he had been charged and the risk of his absconding.
13. On 16 October 1998 the applicant was confined in the detention facility IZ-48/2 "Butyrskiy" in Moscow.
14. By a decision of the investigating authority the applicant was subjected to a psychiatric examination.
15. On 19 November 1998 he was examined by experts from the Alekseev Psychiatric Hospital of Moscow. As the experts had difficulties in reaching conclusions the applicant was placed in the Serbskiy Forensic Psychiatry Institute in Moscow, which examined him from 10 December 1998 to 6 January 1999. It was noted that he had never previously been found to be suffering from a mental illness. The commission of experts diagnosed the applicant as suffering from profound dissociative personality disorder (innate psychopathy) and found that he could not be held responsible for the offence with which he had been charged. The experts recommended that the applicant undergo psychiatric treatment on an out-patient basis at his place of residence.
16. The period of the investigation and the applicant"s detention in custody were extended twice by the public prosecutor"s office, first until 12 January 1999 and later until 12 February 1999.
17. On 10 February 1999 the investigation was completed and the applicant"s criminal case was submitted to the Gagarinskiy District Court of Moscow.
B. Court proceedings
18. On 28 June 1999 the Gagarinskiy District Court of Moscow dismissed the applicant"s request for release and ordered, while giving no reasons and no chance for the defence to object, an additional psychiatric examination. On 23 July 1999 the decision was upheld by the Moscow City Court on appeal.
19. The applicant"s examination by the commission of experts of the Serbskiy Forensic Psychiatry Institute on 25 August 1999 revealed no significant changes in the applicant"s memory, attention and mental faculties. As the commission was uncertain as to the state of the applicant"s mental health, it recommended he undergo a second psychiatric examination as an in-patient.
20. The latter was ordered by the District Court on 20 September 1999 and carried out by the Serbskiy Forensic Psychiatry Institute from 24 November 1999 to 24 December 1999. The commission of experts found that the applicant suffered from a psychological disorder in the form of profound dissociative psychopathy, that he had committed the offence in a deranged state of mind and that at present he had, inter alia, a perverted perception of the circumstances relevant to the criminal case against him and could not give adequate evidence about them. It was concluded this time that the applicant was in need of placement in a mental hospital for compulsory treatment.
21. The hearing of the case was adjourned on a number of occasions because of the failure of duly notified witnesses to appear. By decisions of 22 February 2000 and 3 March 2000 the District Court ordered the district police to bring the witnesses to the court.
22. On 10 March 2000 the District Court again dismissed the defence"s request for the applicant"s release, stating as follows:
"Having considered the application [for release], in view of the nature of the crime committed, the court considers that it cannot be granted."
23. On the same day the District Court rejected the applicant"s request to appear before the court on the ground that ill detainees were not transported to court from the detention facility IZ-48/2.
24. On 3 April 2000 the District Court again dismissed a request by the applicant"s lawyers for the applicant to appear personally at the hearing in order to give evidence in person and to be taken to the court for that purpose. The court explained its decision by reasoning that the statement of a person who had been legally established as mentally disturbed could not be accepted as evidence. The District Court also rejected a request by the applicant"s lawyers to carry out an inquiry at the detention facility IZ-48/2 to clarify why they had refused to transport the applicant to the court.
25. On 4 April 2000 the District Court examined the case at a public hearing in the presence of the prosecutor and the applicant"s lawyer. At the hearing the court examined a member of the commission of experts which had carried out the second in-patient psychiatric examination of the applicant recommending his placement in a mental hospital. The applicant"s lawyers" request to examine an expert representing the initial opinion, which had found the applicant"s out-patient treatment at his place of his residence to be sufficient, was rejected by the court.
26. The court found that at 5 p.m. on 12 October 1998 the applicant had acquired marijuana for personal consumption and kept it in his possession until being detained by the police three hours later. Such actions were punishable under Article 228 § 1 of the Criminal Code of the Russian Federation. The court noted that, according to the expert opinion, the applicant had committed the offence with which he had been charged in a deranged state of mind and that he was in need of compulsory treatment in a mental hospital. The court held that the applicant had committed the offence in a state of diminished responsibility, that he should therefore not be deemed responsible and that he should be placed in a mental hospital for compulsory treatment.
27. The applicant"s lawyers appealed against the decision on the grounds of, inter alia, the applicant"s absence at the trial and the resulting failure of the court to examine his personality; the court"s refusal to examine the first expert in order to settle the inconsistency between the two expert opinions in the case; and the court"s failure to explain why preference was given to the second opinion. The defence referred to certificates issued by the detention facility IZ-48/2 showing a positive assessment of the applicant"s behaviour and the satisfactory state of his physical and mental health. They also pointed out that the applicant was a good family man and that there was no indication that he had ever inflicted harm on others.
28. On 25 April 2000 the Moscow City Court dismissed the applicant"s appeal. It stated that it did not find any inconsistency between the two expert opinions or any reasons for not giving credence to the second one. The City Court"s decision contains no comments in relation to the applicant"s absence at the trial.
29. On 23 May 2000 the applicant was transferred from the detention facility IZ-48/2 to the Moscow Psychiatric Hospital No. 7. It appears that he was later transferred to a psychiatric hospital in Nizhniy Novgorod from which he was discharged on 22 February 2001.
30. On 11 February 2003 the Court communicated the present case to the Government.
31. On 24 April 2003 the Moscow Public Prosecutor"s Office brought an application for supervisory review of the case before the Presidium of the Moscow City Court. The prosecutor claimed that the trial court should have given reasons for ignoring the first expert opinion and basing its decision to place the applicant in a mental hospital on the second expert opinion. It was noted that the applicant"s state of health had been essentially the same at the time of the two psychiatric examinations and that the expert, who was examined by the court, had failed to explain why the recommended type of treatment had been changed, that question never being resolved at the trial.
32. On 5 June 2003 the Presidium of the Moscow City Court agreed with the arguments advanced by the prosecutor, quashed the decisions of 4 and 25 April 2000 and remitted the case for a fresh examination by another composition of judges of the Gagarinskiy District Court of Moscow.
33. On 9 July 2003 the District Court held a hearing in the presence of the prosecutor and the applicant"s lawyer. The court held that the applicant had unlawfully acquired and possessed drugs but that he should not be held criminally responsible since he had been in a deranged state of mind. The court further held that no compulsory medical measures should be imposed on the applicant, who had already undergone treatment following the court"s decision of 4 April 2000.
34. The applicant"s lawyer appealed, referring, inter alia, to the applicant"s absence at the first-instance hearing.
35. On 4 September 2003 the Moscow City Court quashed the decision of 9 July 2003 and discontinued the criminal proceedings against the applicant pursuant to an Amnesty Act of 26 May 2000.
C. Conditions of detention in the
psychiatric ward of IZ-48/2
36. The applicant was kept in the detention facility IZ-48/2 "Butyrskiy", also referred to as SIZO-2, in Moscow from 16 October 1998 until 23 May 2000.
37. The applicant was first held in a cell under the general regime. In January 1999, after he had undergone a psychiatric examination at the Serbskiy Forensic Psychiatry Institute, he was placed in the psychiatric ward of the detention facility SIZO-2.
1. The applicant"s account
(a) Cell No. 404
38. The applicant submitted that he had been held in cell No. 404 for the following approximate periods (give or take two or three days): from 6 January 1999 until 28 April 1999 and from 24 December 1999 until 25 May 2000.
39. It measured 32 sq. m. It was three metres high with two windows of 1.7 by 1.7 metres equipped with shutters, which were made of metal plates five or six centimetres wide welded at an angle of forty-five degrees so that inmates could not see out of them and very little light could come in.
40. The cell was dimly lit with one bulb of 40 to 60 watts. The temperature in winter was about 15 to 16 degrees centigrade.
41. There was, however, a hot water supply, and the inmates received soap from preachers who regularly visited the cell.
42. A 15- or 20-minute shower was allowed only once a week.
43. Outdoor walks in exercise areas on the roof of the prison building did not exceed 30 to 40 minutes per day.
44. The cell contained 24 bunk beds and held up to 26 inmates.
45. The applicant and other inmates did not often have individual bedding. Thus, on his arrival the applicant was given neither individual bedding nor eating utensils. He went on a hunger strike and lodged a complaint with the Ministry of Justice. Only four days later mattresses, bed linen and eating utensils were given to him and his cell mates.
(b) Cell No. 415
46. On 28 April 1999 the applicant was put in cell No. 415 where he stayed until September 1999.
47. The cell,

"СОГЛАШЕНИЕ МЕЖДУ ПРАВИТЕЛЬСТВОМ РОССИЙСКОЙ ФЕДЕРАЦИИ И КАБИНЕТОМ МИНИСТРОВ УКРАИНЫ О ТРАНЗИТЕ НЕФТИ ПО ТЕРРИТОРИИ УКРАИНЫ"(Заключено в г. Сочи 18.08.2004)  »
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