POPOV v. RUSSIA

CASE OF POPOV v. RUSSIA
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The applicant was detained on 14 May 2002for a murder he was suspected of committing, without an order of detention given tom him and with a notification made to his mother. After he was transferred to remand prison in Moscow, his advocate complained to the prosecutor that there had been a procedural error in identification parades and the investigator failed to verify the applicant’s alibi. The applicant’s pre-trial detention was extended a number of times against which he appealed on 21 November 2002 and wasn’t successful as his detention order was upheld. On 10 January 2003, the prosecutor presented the accusation to the district court which had convicted the applicant on 10 September 2003 on murder and sentenced him to 10 years of imprisonment. The applicant appealed to the Moscow City Court on the ground that the district court relied on inadmissible evidence, dismissed his request to call one witness and refused to adjourn the hearing to call another. The city court upheld the district court’s ruling of 18 June 2003 for the extension of the applicant’s pre-trial detention and upheld the decision convicting the applicant.

The applicant also challenged the constitutionality of a provision in the Code of Criminal Procedure based on which the district court refused the representation in trial of the applicant by his uncle. He alleged that the district court had violated his constitutional right to defend his rights by lawful means. The constitutional court, however, dismissed his claim as inadmissible stating that the provision in the Criminal Procedure Code didn’t limit the right to be represented by relatives.

The applicant claimed that the condition of his detention at the remand prison in Moscow was problematic as he had been detained with several people in a cell that couldn’t let them get appropriate sleep, some of the inmates were infected with TB and HIV, his belongings were taken by inmates with the consent of the authorities, and the food and water provision wasn’t sufficient. He claimed that he had complained a number of times to the prosecutor’s office and the General Prosecutor but hadn’t received any response. The government contended that the applicant “had been provided with a bed and bedding in accordance with prison standards. He had been provided with clothing appropriate to the season. He had received hot meals three times a day (breakfast, dinner, supper) in accordance with prison standards. He had undergone hygienic procedures once a week. The applicant had never been placed in the same cell as inmates infected with tuberculosis or HIV.” [Para.60]

The applicant claimed that he had he had been beaten by his inmates while detained in prison and was threatened to be murdered, and the prison and the investigative authorities consented and at times instructed such acts to force him to incriminate himself. He claimed that in August 2002, he was hit at his head after which he had fainted and damaged sustained brain concussion and had his ear injured. “In August, September and November 2002 the applicant had sustained multiple fractures in his nose and hematomas on his face. He submitted that his face and ears had been black and blue and he could hardly open his eyes. His nasal bones did not knit properly and the nasal partition had collapsed leading to dis-figuration of his face. The applicant could not breath through one of his nostrils, always had a runny nose and almost lost his sense of smell. His ears often ached and his hearing was impaired. His sight had also worsened. The applicant also alleged that he had been regularly kicked, which had caused internal bruising and blood in his urine”. [Para. 61]

The applicant applied to the prison’s medical unit but hadn’t been provided with proper medical examination. An entry of 1 November 2002 in his record had a statement that he had ‘fading hematomas’. He described to his representative about his beating by inmates and his failure to communicate the same due to the threat of murder they had posed on him.  The government argued that the applicant hadn’t been subjected to ill-treatment and hadn’t sustained injuries in prison.

The applicant had urinary bladder cancer since 1994, and claimed that he had had paroxysms in his kidneys and stomach with the high temperature in prison for which he hadn’t been given proper and timely treatment. He hadn’t been given the proper medication for his condition even the one brought by his family. The prison’s medical unit lacked the specialized tests needed for his condition and the personnel weren’t qualified that he refused to take certain tests. The medical unit also failed to notify the consultant outside (Uro-oncologist) about a new tumor they have found on the applicant. The government argued that the applicant had been provided with the appropriate examination and care (including surgery) at the medical unit in the prison and that he hadn’t showed signs of recurrent cancer. The applicant’s mother had been notified that appropriate medical care was being given to her son and that he hadn’t taken the medication she had brought because he didn’t need to take them due of his diagnosis.

During his detention at a prison in Sarapul, the applicant had notified the medical unit in the prison of his cancer but wasn’t able to get tested and treated. The government contended that the applicant refused such tests. The applicant also refused to perform certain compulsory prison works due to his condition while the prison doctor diagnosed the applicant and concluded that his state of health permitted him to perform those works except the hard labor works. The applicant was placed in a disciplinary cell for 2 weeks where he was placed under conditions unpleasant to his state of health worse. The applicant was placed in another cell and later to a disciplinary cell (due to his refusal to perform morning exercises that he was found to be able to perform) for a total of 20 days under conditions unpleasant to his condition.

The applicant complained regarding his medical treatment and his placement in those cells to the Main Department for the Execution of Sentences. The applicant’s treatment at the Department’s hospital was performed by qualified specialists and he was diagnosed with numerous concretions in his kidneys, and diffuse changes and cysts in the prostate for which he refused an operative treatment.  The applicant notified his representative that his condition had been worsened due to the prison work and morning exercises he had performed while the representative requested the Ministry of Health about the possibility of having the applicant examined within its jurisdiction. The Director at the Institute of Urology at the Ministry wrote an expert opinion regarding the applicant’s Urinary bladder cancer in which he noted that the applicant’s physical examination by a specialized Uro-oncological hospital was required for his exact diagnosis. On 11 September 2005, a urologist came to the prison whose examination the applicant refused on the ground that the medical unit wasn’t licensed to practice urology.

In the mean time, the applicant’s mother had requested the Medical Department of the Republic of Udmurtia Directorate of the Department for the Execution of Sentences for her son’s examination in a hospital within their jurisdiction. The department responded to her referring to the applicant’s prior treatment and  refusal to treatment, and stating that his state of health was satisfactory that he didn’t need further examination at an institution in their jurisdiction.

The applicant also claimed that “several letters sent to his representative had not reached their addressee and a number of letters from his representative had been opened and read by prison officials. According to the Government, there had been no interference with the applicant’s correspondence by the prison authorities. All the letters from the applicant’s representative had been handed over to him unopened”. [Para. 113]

The applicant brought his claim before the European Court of Human Rights (the ECHR) alleging a violation of Articles 3, 5 and 6 of the European Convention on Human Rights (the Convention) by Russian Authorities.

The ECHR looked through the circumstances of the applicant’s case and held that there had been a violation of Article 6(3)(d), which states that everyone charged with a criminal charge has the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”, taken together with the right to a fair trial under Article 6(1) of the Convention. [Para. 157]

Regarding the applicant’s allegations of the use of physical force against him by prison inmates, the ECHR wasn’t able to conclude that the injuries recorded in his medical records contained signs of use of such a force. Moreover, the ECHR noted that the applicant hadn’t brought the issues to the attention of domestic authorities at the right time when they could take measures to investigate the matter and protect his security. The ECHR held that there was no evidence to conclude that the applicant was subjected to ill-treatment in prison in violation of Article 3 of the Convention. In relation to the conditions of his detention, however, the ECHR observed that the applicant’s state of health required specialized medical supervision for timely diagnosis and treatment of his recurrent cancer. Specifically, the applicant at least needed regular examinations by Uro-oncologist and Cystoscopy every year. However, because the applicant hadn’t undergone such medical procedures, the ECHR concluded that the applicant hadn’t been provided with medical care required by his condition. Thus, the ECHR held that due to his prolonged detention and the state’s failure to provide him with medical assistance had amounted to inhuman and degrading treatment under Article 3 of the Convention.

The ECHR noted that the applicant had been complaining about his pain and that he had refused physical examination by Urologist who had come to examine him. In relation to his detention in disciplinary cells, the  ECHR noted that the “the applicant, who regularly complained about pain in his loins and was diagnosed by the prison doctors as having a number of urological diseases, had to remain in his cell for 23 hours a day, out of which for 16 hours he was practically confined to a narrow bench with no back. He spent over one month of his detention in such conditions, including two periods of 15 days in a row”. [Para. 239] The ECHR thus found that the conditions of his detention in the disciplinary cells amounted to inhuman and degrading treatment and thus a violation of Article 3 of the Convention.

The ECHR also found non-compliance by the state of its obligations under Article 34 of the Convention on the ground that the applicant had been subjected to an illicit pressure (undue interference) against his right of petition by prison officials.

The ECHR awarded the applicant non-pecuniary damage.

“……the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance”. [Para. 208]

“……the Court considers that the extreme lack of space weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned conditions of detention were “degrading” from the standpoint of Article 3. The fact that the applicant was obliged to live, sleep, and use the toilet in the same cell with so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and arouse in him the feelings of fear, anguish and inferiority capable of humiliating and debasing him….” [Para. 217]

“The Court notes that since his operation in 1994 the applicant had been well informed about his medical condition and the risks associated with it. He knew that in case of further development of the cancer, any delay in diagnosis could have fatal consequences as even surgical treatment would no longer be possible. In the Court's view, this must have given rise to considerable anxiety on the applicant's part, especially as he was aware of a neoplasm in his prostate detected by an ultrasound scan and could not have recourse to a qualified specialist for a conclusive diagnosis”. [Para. 218]

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