Mensenrechtenhof veroordeelt Russische autoriteiten om veroordeling psychisch gehandicapte marijuana-gebruiker (en)
The European Court of Human Rights has today notified in writing a judgment [1] in the case of Romanov v. Russia (application no. 63993/00).
The Court held unanimously that there had been
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-a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights;
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-a violation of Article 5 § 3 (right to trial within a reasonable time or to release pending trial) of the Convention;
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-a violation of Article 6 §§ 1 (right to a fair trial) and 3(c) (right to defend oneself in person).
Under Article 41 (just satisfaction), the Court awarded the applicant 5,000 euros (EUR) for non-pecuniary damage and EUR 628 for costs and expenses. It also awarded the applicant 4,519.99 Russian roubles (approximately EUR 131.85) and 620.36 Ukrainian hryvnas (EUR 102.46) in respect of other expenses. (The judgment is available only in English.)
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1.Principal facts
The applicant, Ilya Romanov, is a Russian national who was born in 1967. He is currently detained in Ukraine.
On 13 October 1998 he was charged with the illegal acquisition and possession of drugs (marijuana) and detained. The grounds given were crime prevention and the risk of his absconding.
On 15 October 1998 the investigator ordered his detention on remand, referring to the applicant's personality, the danger he posed to the public and the risk of his absconding. On 16 October 1998 he was confined in the detention facility IZ 48/2 "Butyrskiy" in Moscow. His detention was extended, first until 12 January 1999 and then, 12 February 1999.
By a decision of the investigating authority the applicant was required to undergo a psychiatric examination. He was examined by experts at Serbskiy Forensic Psychiatry Institute in Moscow, who found he was suffering from profound dissociative personality disorder (innate psychopathy), such that he could not be held responsible for the offence with which he had been charged. It was recommended that he undergo psychiatric treatment on an out patient basis at his place of residence.
From 10 January 1999 until 23 May 2000 (except for a month he spent in the psychiatry institute from November to December 1999) the applicant was held in the psychiatric ward of the detention facility IZ 48/2.
The applicant maintained that he spent about 11-and-a-half months in cells measuring over 30 sq. m, and about four months in a cell measuring less than 15 sq. m. The bigger cells were designed for 24 people, according to the applicant, and actually held up to 26 inmates; 22 people and up to 35 inmates, according to the Government. Save for 30 to 40 minutes, according to the applicant, or one hour, according to the Government, of daily outdoor walks in exercise areas on the roof of the prison building, the applicant was permanently confined to his cell. According to the applicant, in addition to the usual bars, there were metal shutters on the windows, which were constructed so that inmates could not see out of them and very little light could come in.
The applicant's case was heard by Gagarinskiy District Court of Moscow, which dismissed his requests for release on the ground that ill detainees were not transported to court from the detention facility IZ-48/2 and later, that the statement of a person who had been legally established as mentally disturbed could not be accepted as evidence. The court also adjourned the proceedings on a number of occasions because witnesses failed to appear.
On 28 June 1999 the court ordered, while giving no reasons and no chance for the defence to object, an additional psychiatric examination. The commission of experts from Serbskiy Forensic Psychiatry Institute on 25 August 1999 were uncertain as to the state of the applicant's mental health. A second examination carried out by the psychiatry institute from 24 November 1999 to 24 December 1999 found that the applicant suffered from a psychological disorder in the form of profound dissociative psychopathy and that he had committed the offence in a deranged state of mind. It was concluded that he was in need of placement in a mental hospital for compulsory treatment.
On 4 April 2000 the district court found the applicant guilty as charged, but that he was not criminally responsible, and that he should be placed in a mental hospital for compulsory treatment. The applicant appealed unsuccessfully. On 5 June 2003 the judgment was quashed.
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.
On 4 September 2003 Moscow City Court quashed the decision of 9 July 2003 and discontinued the criminal proceedings against the applicant, under an Amnesty Act of 26 May 2000.
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2.Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 16 October 2000 and declared partly admissible on 1 April 2004.
Judgment was given by a Chamber of seven judges, composed as follows:
Bostjan M. Zupančič (Slovenian), President,
John Hedigan (Irish),
Lucius Caflisch (Swiss) [2],
Margarita Tsatsa-Nikolovska (citizen of "the Former Yugoslav Republic of Macedonia"),
Anatoli Kovler (Russian),
Vladimiro Zagrebelsky (Italian),
Egbert Myjer (Netherlands), judges,
and also Vincent Berger, Section Registrar.
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3.Summary of the judgment [3]
Complaints
The applicant complained about the conditions and length of his detention in the psychiatric ward of the detention facility "Butyrskiy", in Moscow. He relied on Article 3 and Article 5 § 3 of the Convention. He also complained that he was refused permission to be present at his hearings and that he did not have a fair trial, relying on Article 6.
Decision of the Court
Article 3
The Court proceeded on the assumption that the applicant was held in the psychiatric ward of the detention facility IZ 48/2 for a year, three months and 13 days (in a smaller cell for about four-and-a-half months and in a larger cell for 11 months).
Concerning the conditions of detention in the bigger cell, at any given time there was between 1 and 1.6 sq. m of space per inmate in the applicant's cell and he did not always have a separate bed. Save for one short period a day of daily outdoor walks in exercise areas on the roof of the prison building, the applicant was permanently confined to his cell.
The Court observed further that, as regards the applicant's medical care and other conditions of his detention, including heating, artificial lighting and ventilation, for the most part neither party submitted evidence which could satisfy the Court "beyond reasonable doubt" whether they were acceptable from the point of view of Article 3. The Court also noted the applicant's assertion that, in addition to the usual bars, there were metal shutters on the windows, which were constructed so that inmates could not see out of them and very little light could come in. It appeared that those metal shutters had been removed throughout the "Butyrskiy" detention facility at the end of 2002.
The Court accepted that there was no indication that there had been a positive intention of humiliating or debasing the applicant. However, the absence of any such purpose could not exclude a finding of violation of Article 3. The Court considered that the conditions of detention, which the applicant had had to endure for at least 11 months, must have undermined his human dignity and aroused in him feelings of humiliation and debasement.
While the Court noted with satisfaction that at present the number of people detained in the "Butyrskiy" detention facility was half that of 1998, as a result of various measures aimed at bringing the conditions of detention into compliance with domestic and international standards, that did not detract from the wholly unacceptable conditions which the applicant had clearly had to endure at the relevant time.
The Court did not find it necessary to examine further the conditions of the applicant's detention in the smaller cell, as the considerations concerning the larger cell were sufficient to find a violation of Article 3.
The Court therefore found that the applicant's conditions of detention, in particular the severe overcrowding and its detrimental effect on the applicant's well being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment. There had therefore been a violation of Article 3.
Article 5 § 3
Grounds for the applicant's detention
The Court observed that the reasons given for the applicant's detention on 13 October 1998 were crime prevention, the risk of his absconding, his personality and the danger he posed to the public.
The Court reiterated first that the danger of absconding could not be gauged solely on the basis of the severity of the sentence risked; it must be assessed with reference to other relevant factors. In the applicant's case, the investigating authority failed to mention any factual circumstances capable of showing the existence of a danger of the applicant's absconding. Nor did it explain in its decision what peculiarities of the applicant's personality warranted, in its view, his detention on remand.
As regards the danger posed to the public by the crime with which the applicant had been charged, namely the acquisition of drugs for personal consumption and possession, even assuming that there was a risk of prejudice to public order at the beginning, it must have disappeared over time. That reason undoubtedly did not suffice to justify the applicant's detention for more than a year. The Court further considered that the reference by the district court to the seriousness of the alleged offence as the only ground for the applicant's continued detention after he had spent a year and almost five months in custody could not justify such a long period spent in of pre-trial detention.
The Court accordingly concluded that the reasons relied on by the investigating authority and the court in their decisions were not sufficient to justify the applicant's being held in detention for the period in question.
Conduct of the proceedings
The Court observed that it took the police four months to investigate the case. During that time the applicant underwent a psychiatric examination which found that he had committed the crime imputed to him in a deranged state of mind and that he did not need to be placed in a mental asylum, out patient psychiatric treatment being sufficient. The Court observed further that, on 28 June 1999, four months after the case was transferred to it, the district court, without seeing the applicant and without giving the defence a chance to object, decided to order a further psychiatric examination. No reasons were given for such a decision. The second in-patient psychiatric examination was carried out four months after the above decision had taken effect and took a month. Three more months elapsed before the court examined the case. The Court noted that no evidence was submitted by the Government on which to contest the applicant's statements that his representatives had not been informed of the hearings which were adjourned on the ground of their failure to appear and that no steps had been taken to bring before the court the witnesses who had repeatedly failed to appear, thus protracting the proceedings.
The Court concluded that the length of the proceedings was attributable neither to the complexity of the case nor to the conduct of the applicant, but to the lack of diligence and expedition on the part of Gagarinskiy District Court of Moscow.
In view of the grounds given for the applicant's detention and the conduct of the proceedings, the Court found that there had been a violation of Article 5 § 3.
Article 6
The Court noted that the district court decided the applicant's case in his absence. Neither was he present at the appeal hearing. The applicant's requests to be heard in person were rejected because the detention facility in which he was held apparently did not transport ill detainees to court and, on another occasion, because the testimony of a mentally-disturbed person could not be accepted as evidence.
The Court recalled that States which had ratified the European Convention on Human Rights were under an obligation to secure the attendance of an accused in custody. Where proceedings involved an assessment of the personality and character of the accused and his state of mind at the time of the offence, and where their outcome could be of major detriment to him, it was essential to the fairness of the proceedings that he be present at the hearing and afforded the opportunity to participate in it together with his counsel.
However, the authorities failed to take any steps to secure the applicant's attendance at the hearings. There was no indication that the applicant's physical and mental condition precluded him from appearing before the court. The district court's argument that the applicant's presence at the hearing was not required in that the testimony of the applicant as a mentally-disturbed person could not be accepted as evidence was striking, given that it was for the district court to determine whether the applicant had committed the offence in a deranged state of mind and assess whether his mental condition required any compulsory medical care.
As regards the scope of the trial court's powers, the Court further observed that the district court determined the criminal charge against the applicant, found that he could not be held responsible because he was suffering from a mental illness and ordered his placement in a mental hospital.
The district court had before it two psychiatric opinions drawn up by the same forensic institution. Although concurring in essence on the applicant's diagnosis, they differed on the measures it necessitated. The Court considered that such an inconsistency, which had an impact on the outcome of the proceedings and, ultimately, on the applicant's liberty, made the question of his participation in the hearing particularly important.
In view of what was at stake for the applicant, the district court could not, if the trial was to be fair, determine his case without a direct assessment of the applicant's evidence, and the presence of the applicant's lawyer could not compensate for his absence. The Court therefore found a breach of Article 6 §§ 1 and 3 (c).
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.
[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.
[2] Judge elected in respect of Liechtenstein.
[3] This summary by the Registry does not bind the Court.