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Судебное дело "Прошкин против России"


Постановление ЕСПЧ по делу Прошкин против России (англ.)

 

08.02.2012

 

                               FIRST SECTION

                         CASE OF PROSHKIN v. RUSSIA

                         (Application no. 28869/03)

                                  JUDGMENT

                                 STRASBOURG

                              7 February 2012

   This  judgment  will  become  final  in  the  circumstances set out in
   Article 44  S: 2  of  the  Convention.  It may be subject to editorial
   revision.


   In the case of Proshkin v. Russia,

   The  European  Court  of  Human  Rights  (First Section), sitting as a
   Chamber composed of:

   Nina Vajic, President, 
    Anatoly Kovler, 
    Peer Lorenzen, 
    Elisabeth Steiner, 
    Khanlar Hajiyev, 
    Linos-Alexandre Sicilianos, 
    Erik Mo/se, judges, 
   and So/ren Nielsen, Section Registrar,

   Having deliberated in private on 17 January 2012,

   Delivers the following judgment, which was adopted on that date:

   PROCEDURE

   1.  The  case  originated in an application (no. 28869/03) 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,  Mr Sergey Anatolyevich
   Proshkin ("the applicant"), on 21 August 2003.

   2.  The  applicant  was  represented  by  Ms  L.  Churkina,  a  lawyer
   practising in Yekaterinburg. The Russian Government ("the Government")
   were  represented  by  Mr  P.  Laptev  and  Mrs  V.  Milinchuk, former
   Representatives  of  the  Russian  Federation at the European Court of
   Human Rights.

   3.  The  applicant  alleged,  in  particular,  the unlawfulness of his
   detention  in  2003, inability to appeal against a detention order and
   the authorities' failure to ensure his presence at hearings during the
   criminal proceedings against him.

   4.  On  16  November  2004 the Judge appointed as rapporteur requested
   the  Government,  pursuant  to  Rule 49 S: 2 of the Rules of Court, to
   submit  factual information concerning the grounds for the applicant's
   detention after 27 January 2003.

   5.  On  5 July 2007 the President of the First Section decided to give
   notice  of  the  application to the Government. It was also decided to
   rule  on  the  admissibility and merits of the application at the same
   time (Article 29 S: 1).

   THE FACTS

   I.  THE CIRCUMSTANCES OF THE CASE

   6.  The applicant was born in 1963 and lives in Perm.

   7.  On  18  October  1996  the  applicant  was  involved  in a traffic
   accident  committed  by  a  Mr P. The applicant, his wife and son were
   injured  and  the  applicant's  car  was damaged. Criminal proceedings
   against Mr P. were discontinued in accordance with an amnesty law.

   8.  Mr  P.  and his mother complained to the police that they had been
   subjected  to constant harassment by the applicant, who had repeatedly
   threatened  them in a number of phone calls and had allegedly demanded
   money in compensation for pecuniary and non-pecuniary damage sustained
   as a result of the traffic accident.

   9.  On 29 March 1999 the Industrialniy District Court of Perm issued a
   decision,  authorising the institution of criminal proceedings against
   the  applicant  on  suspicion  of  aggravated defamation and insulting
   behaviour.

   10.  In  July  1999  Mr  P. petitioned the Perm Regional Prosecutor to
   detain  the  applicant and to subject him to a psychiatric examination
   because the harassment had not stopped and had even escalated to death
   threats  against  both Mr P. and his mother. Twenty days later Mr P.'s
   lawyer repeated the request.

   11.  On  24  September  1999  another  set of criminal proceedings was
   instituted  against the applicant who, in these proceedings, was under
   suspicion of having made death threats.

   12.  On  5  November  1999  the  two sets of criminal proceedings were
   joined and the applicant's placement in custody was authorised. He was
   placed   in   temporary   detention   facility  no.  IZ-59/1  in  Perm
   (hereinafter "facility no. 1").

   13.  The  applicant lodged a complaint with the Industrialniy District
   Court, alleging that his arrest was unlawful.

   14.  On  25  November 1999 the District Court dismissed the complaint,
   confirming  the  lawfulness of the arrest. That decision was upheld on
   appeal by the Perm Regional Court on 22 December 1999.

   15.  On  6  December  1999 a prosecutor authorised an extension of the
   applicant's  detention  until  5 February 2000. On 18 January 2000 the
   Industrialniy  District  Court  rejected  the  applicant's  subsequent
   appeal  against  the  extension,  noting  the  gravity  of the charges
   against him.

   16.  Whereas  the  investigation  in  the criminal case continued, the
   applicant was released on 4 February 2000 on a written undertaking not
   to leave the town.

   17.  On  31  August 2000 the Industrialniy District Court, having held
   hearings  in  the applicant's presence, found him guilty of aggravated
   defamation  and  extortion, acquitted him of the remaining charges and
   sentenced  him  to  seven  years'  imprisonment.  On  the same day the
   applicant was taken to facility no. 1.

   18.  Following  the  appeal  hearing  which the applicant attended, on
   9 November   2000  the  Perm  Regional  Court  quashed  the  judgment,
   acquitted him of aggravated defamation and ordered a fresh examination
   into  the  charge of extortion. The applicant was released on the same
   day under a written undertaking not to leave the town.

   19.  In accordance with the order of the Regional Court, on 18 January
   2001   the  Industrialniy  District  Court  authorised  an  additional
   investigation into the charge of extortion.

   20.  On 26 March 2002 the District Court further ordered a psychiatric
   assessment  of  the  applicant.  That decision was upheld on appeal on
   30 April  2002  by  the  Perm  Regional  Court,  which,  in  so far as
   relevant, held as follows:

   "As  appears  from the case file materials, [the applicant] is accused
   of  having  committed  criminal  offences which resulted from the fact
   that in 1996 his family had been involved in a traffic accident caused
   by   a   driver,  Mr  P.  Criminal  proceedings  against  Mr  P.  were
   discontinued  in  accordance  with an amnesty law. [The applicant] did
   not  accept  the outcome of the criminal case and began complaining to
   various  institutions  and  authorities.  Having  received replies, he
   began  making numerous written requests asking to have the authorities
   who  had  dealt  with  his  complaints,  including  his lawyer who had
   represented   his   interests,  held  liable.  In  December  1999  the
   investigating  authorities,  having  doubts  that  [the applicant] was
   mentally  healthy, ordered a forensic psychiatric examination. Experts
   concluded that [the applicant] did not have a psychiatric illness, but
   [that]  he  was  a  psychopath.  However, the stream of complaints and
   motions subsequently intensified; the circle of people against whom he
   asked [for a] criminal investigation to be opened due to their alleged
   failure  to  carry  out their duties broadened. Having regard to those
   facts,  [the District] court found that it was necessary to perform an
   additional examination."

   21.  According  to  the  Government, the examination was scheduled for
   31 July  2002.  However,  the  applicant  refused to attend it and the
   Industrialniy District Court ordered his being brought for examination
   against his will.

   22.  On  26  October  2002  the  applicant was apprehended in Perm and
   taken  to  the Serbskiy State Scientific Centre of Social and Forensic
   Psychiatry  in  Moscow  (hereinafter  "the Centre"). A month later the
   Centre  issued  an  expert  report finding that the applicant suffered
   from  schizophrenia. The expert conclusions were based, inter alia, on
   the following considerations:

   "[The  diagnosis]  is  confirmed  by the medical history, showing that
   since  adolescence  [the  applicant]  has  acute premorbid personality
   traits such as hyperactivity, the urge to become a self-reliant person
   [and]  an intense feeling of injustice, with subsequent slowly growing
   psychopathic   changes   (extreme   straightforwardness,  intolerance,
   contentiousness, rudeness, unsociability, arrogance) and a tendency to
   establish  obsessive  interests  (all-absorbing  passion for technical
   equipment  [and]  jurisprudence)  which  transformed  into  affective,
   obsessive   [and]   absurd   ideas,   relations,  querulous  paranoia,
   litigiousness over an extremely broad number of subjects and involving
   a  large  number  of  people,  which  led  to his incorrect behaviour,
   litigious activities and malfunctioning social adaptation."

   The applicant was released from the Centre on 21 November 2002.

   23.  Another  psychiatric  examination of the applicant was ordered by
   the Industrialniy District Court on 10 January 2003.

   24.  On  27  January  2003  the  District  Court  issued two decisions
   authorising  the  applicant's  arrest  on the grounds that he had been
   charged  with a particularly serious criminal offence and the forensic
   psychiatric   examination  had  established  that  he  "suffered  from
   schizophrenia [and] presented a danger to society". The decisions, one
   handwritten  and  the  other one typed, were identical in wording save
   for  one  difference. By the first decision the District Court ordered
   the  applicant's  placement  in  a psychiatric hospital. By the second
   decision  it  authorised  his detention in detention facility no. 1 in
   Perm. The applicant attended the hearing.

   25.  The   applicant  provided  the  Court  with  copies  of  the  two
   decisions,  both  bearing  the  presiding  judge's  signature  and the
   court's  stamp.  The  Government explained that on 27 January 2003 the
   presiding  judge  had issued a handwritten detention order authorising
   the applicant's admission to a psychiatric hospital. Subsequently, the
   court  registry had prepared a typed version of the same decision. The
   Government  argued  that the case file materials had not contained the
   second  decision ordering the applicant's detention in facility no. 1.
   The  applicant  was taken into custody in the court house and taken to
   detention facility no. 1.

   26.  The applicant lodged an appeal against the decision of 27 January
   2003.  He  complained  that  there  had been no evidence that he was a
   danger  to  society and that, accordingly, there was no need to detain
   him.  As  follows  from the stamp on the statement of appeal, the Perm
   Regional Court received it on 29 January 2003.

   27.  On 31 January and 1 February 2003 the applicant lodged additional
   statements  of appeal, further challenging the grounds for his arrest.
   Stamps  on  the  statements  show  that they reached the Perm Regional
   Court on 31 January and 2 February 2003 respectively.

   28.  The  applicant's  appeals against the decision of 27 January 2003
   never received a reply.

   29.  It  appears  that  on  17  and 18 February 2003 the Industrialniy
   District  Court  held trial hearings. While the applicant's lawyer and
   mother  attended, the applicant was not brought to the courthouse. The
   District  Court  did  not  issue  any  formal  decision addressing his
   absence from the trial. However, as it follows from the case file, the
   matter  was  raised  and  discussed  leading  to the presiding judge's
   conclusion that the applicant's presence was unnecessary.

   30.  On  18  February  2003 the Industrialniy District Court held that
   the applicant had committed aggravated extortion but relieved him from
   criminal  responsibility,  finding that he was mentally incapacitated.
   The District Court ordered the application of compulsory measures of a
   medical  nature  to  the  applicant and his placement in a psychiatric
   hospital for intensive care. The relevant part of the decision read as
   follows:

   "...  Having  regard  to  the fact that [the applicant] suffers from a
   mental  illness,  he  is inclined to reoffend, including by committing
   particularly  serious [criminal offences], he distinguishes himself by
   [behaving]  aggressively,  by [being] intolerant to other individuals,
   it  is  necessary  to  commit him to compulsory treatment in a special
   psychiatric hospital with intensive care".

   31.  On 20 February 2003, in response to the District Court's order of
   10 January  2003,  the  Perm  Regional  Clinical  Psychiatric Hospital
   issued  an  expert report, confirming the findings made by the experts
   of the Centre.

   32.  On  15 April 2003 the Perm Regional Court held an appeal hearing.
   The  applicant  was  not  brought  to it, despite his requests to that
   effect.  Both  his  lawyer  and  his mother were present. The Regional
   Court  examined  the  applicant's  complaint  of failure to ensure his
   presence  at  the trial hearings and found that the District Court had
   acted  lawfully because the domestic law did not require his presence.
   It  also  pointed  out  that the applicant had been represented by his
   mother  and  a  lawyer.  Having  been  fully convinced by the District
   Court's   findings,   the   Regional  Court  upheld  the  decision  of
   18 February 2003.

   33.  In  the  meantime,  the Industrialniy District Prosecutor filed a
   motion   with   the  District  Court  seeking  a  declaration  of  the
   applicant's  incapacity.  The  prosecutor  argued  that  the applicant
   should be deprived of legal capacity for reason of insanity.

   34.  On  6  May  2003  the Industrialniy District Court found that the
   applicant  suffered  from  a  chronic mental illness, he was unable to
   appreciate  his  conduct  and  its danger to society or to control his
   actions,  and  he  was  in  need of constant supervision. The District
   Court  declared the applicant legally incapacitated. The applicant did
   not appeal against that decision.

   35.  According  to  the  Government,  the  applicant  was  detained in
   facility  no.  1  in Perm until 24 July 2003 because his transfer to a
   specialised  psychiatric  hospital  in  Kaliningrad was delayed as the
   Russian  authorities  had  failed  to  obtain  a  visa  permitting the
   applicant's  transit  through  Lithuania.  Relying on a statement by a
   representative  of  the Ministry of Justice of the Russian Federation,
   the  Government  submitted  that  during  the  entire  period  of  his
   detention  in facility no. 1 the applicant had been detained in a cell
   designated for mentally ill inmates.

   36.  On  24  July  2003  the  applicant's  transfer  to  a psychiatric
   hospital  in  Kazan  was authorised. The hospital, however, refused to
   admit  him  because  he  did  not  have a valid identity document. The
   applicant therefore continued being detained in detention facility no.
   1  until  18 August  2003. On that date he was sent to the psychiatric
   hospital in Kazan. On 4 June 2004 he was released from the hospital.

   II.  RELEVANT DOMESTIC LAW

   A.  Detention

   37.  Until  1 July 2002 criminal-law matters were governed by the Code
   of  Criminal  Procedure  of  the  Russian  Soviet Federalist Socialist
   Republic  (Law  of 27 October 1960). From 1 July 2002 the old CCrP was
   replaced  by  the Code of Criminal Procedure of the Russian Federation
   (Law no. 174-FZ of 18 December 2001, "the CCrP").

   1.  Preventive measures

   38.  "Preventive  measures"  or  "measures  of  restraint"  include an
   undertaking  not to leave a town or region, a personal guarantee, bail
   and detention on remand (Article 98 of the CCrP).

   2.  Authorities ordering detention on remand

   39.  The  Russian  Constitution  of  12  December 1993 provides that a
   judicial  decision  is  required before a defendant can be detained or
   his or her detention extended (Article 22).

   The CCrP requires a judicial decision by a district or town court on a
   reasoned  request  by  a  prosecutor supported by appropriate evidence
   (Article 108 S:S: 1, 3-6).

   3.  Grounds for ordering detention on remand

   40.  When  deciding  whether  to  remand  an  accused  in custody, the
   competent   authority  is  required  to  consider  whether  there  are
   "sufficient  grounds  to  believe" that he or she would abscond during
   the  investigation or trial or obstruct the establishment of the truth
   or  reoffend  (Article 97). It must also take into account the gravity
   of  the  charge,  information  on  the accused's character, his or her
   profession,   age,   state   of   health,   family  status  and  other
   circumstances (Article 99).

   41.  The CCrP sets a general rule permitting defendants to be detained
   on  remand  if  the  charge  carries a sentence of at least two years'
   imprisonment.  In  exceptional  cases,  the  Code permits detention of
   defendants  on  a  charge  carrying a sentence of less than two years'
   imprisonment,  if  they  have  previously defaulted, have no permanent
   residence  in  Russia  or  if  their identity cannot be ascertained. A
   defendant should not be detained on remand if a less severe preventive
   measure is available (Articles 97 S: 1 and 108 S: 1).

   4.  Proceedings to examine the lawfulness of detention

   (a)  As regards detention "during the investigation"

   42.  An  appeal  may  be  lodged with a higher court within three days
   against a judicial decision ordering or extending detention on remand.
   The  appeal  court  must  rule  on the appeal within three days of its
   receipt  (Article 108  S:  10). The right to appeal against a judicial
   decision   belongs  to  a  defendant,  his  representative  and  legal
   guardian,  a prosecutor, a victim and his representative (Articles 127
   S: 1 and 354 S: 4).

   (b)  During the judicial proceedings

   43.  At  any time during the judicial proceedings the court may order,
   vary  or  revoke any preventive measure, including detention on remand
   (Article   255  S:  1).  Any  such  decision  must  be  given  in  the
   deliberation  room  and signed by all the judges on the bench (Article
   256).

   44.  An appeal against such a decision lies to a higher court. It must
   be  examined  within  the  same  time-limit  as  an appeal against the
   judgment on the merits (Article 255 S: 4).

   B.  Compulsory measures of a medical nature

   45.  The  Criminal  Code  of  the  Russian  Federation, in force since
   1 January  1997,  and  the  Code  of Criminal Procedure of the Russian
   Federation  set  out  the grounds and procedure for the application of
   compulsory measures of a medical nature.

   1.  Criminal Code of the Russian Federation

   Article  97.  Grounds  for the application of compulsory measures of a
   medical nature

   "1.  Compulsory measures of a medical nature may be applied by a court
   to individuals:

   (a)  who,  in  a  state of insanity, committed an offence described in
   [...] the ... present Code;

   (b)  who,  after  having committed a criminal offence, became mentally
   ill, making it impossible to sentence him and execute that sentence;

   (c)  who  committed  a  criminal  offence and who suffer from a mental
   illness, which does not [reach the level of insanity];

   (d)  who  committed a criminal offence and who were considered in need
   of treatment for alcoholism or drug abuse.

   2.  Compulsory  measures  of a medical nature shall only be applied to
   people  [falling  within the situations] listed in the first paragraph
   of  the present Article in cases where the mental disorders are linked
   to  the  ability  of  those  persons to cause substantial damage or to
   present a danger to themselves or other individuals."

   2.  The Code of Criminal Procedure of the Russian Federation

   Article 435.  Placement in a psychiatric hospital

   "1.  When  it is established that a person to whom detention on remand
   has  been  applied  as  a  measure  of restraint suffers from a mental
   illness,  a  court,  upon a prosecutor's motion and in accordance with
   the procedure laid down in Article 108 of the present Code, shall take
   a  decision  authorising  a  transfer  of that person to a psychiatric
   hospital.

   2.  Placement  of  a  person  who  is  not  detained  on  remand  in a
   psychiatric  hospital  may be authorised by a court in accordance with
   the procedure laid down in Article 203 of the present Code."

   Article 443.  A court decision

   "1.  When  a  court  finds  it  proven  that  a  criminal  offence was
   committed  by  that person in a state of insanity or that after having
   committed a criminal offence the person became mentally ill, making it
   impossible  to  sentence him and execute the sentence, the court shall
   take  a decision in accordance with Articles 21 and 81 of the Criminal
   Code  of  the  Russian  Federation  reliving that person from criminal
   responsibility  or  from  serving  the  sentence  and  authorising the
   application of compulsory measures of a medical nature to him..."

   Article 444.  Procedure for lodging appeals against a court decision

   "A  court  decision  may  be  appealed  against by a representative, a
   victim and his representative, a legal guardian or close relative of a
   person  in  respect  of  whom  a  criminal case was examined, and by a
   prosecutor in accordance with Chapter 45 of the present Code."

   C.  Judicial proceedings

   The Code of Criminal Procedure of the Russian Federation

   Article 247.  Participation of a defendant.

   "1.  Presence  of a defendant at a court hearing in a criminal case is
   mandatory,  save  in the circumstances which are listed in paragraph 4
   of the present Article.

   2.  If  a  defendant fails to attend, the examination of a case should
   be adjourned.

   ...

   4.  A  court  hearing  may  be  held  in  the defendant's absence if a
   defendant in a criminal case concerning a minor criminal offence or [a
   criminal offence] of average severity asks for the examination of that
   criminal case in his absence."

   Article 376.  Fixing an [appeal] court hearing.

   "1.  When  [a  judge]  receives  a  criminal  case with a statement of
   appeal, [he] shall fix the date, time and place of a court hearing.

   2.  An  appellate court shall inform the parties of the date, time and
   place  of  the  examination  of  a criminal case no later than 14 days
   before   the  hearing.  The  court  shall  determine  whether  [it  is
   necessary] to call a defendant who is in custody.

   3.  If  a  defendant  who  is  in  custody  informs [the court] of his
   willingness  to take part in the examination of the appeal against the
   trial  judgment,  he has the right to take part in a hearing in person
   or  can  state  his  position  by way of a video conference. The court
   shall  determine  the  form  of  the  applicant's  participation  in a
   hearing..."

   46.  Section  51  of  the Russian Code of Criminal Procedure lays down
   procedural  norms  for  the  examination  of a criminal case against a
   person  who  is  charged with having committed a criminal offence in a
   state  of insanity or who became mentally ill after having committed a
   criminal  offence  when  he can no longer bear criminal responsibility
   and  serve a sentence. By virtue of Section 51 of the CCrP, the courts
   shall  examine  a  criminal  case against such a person in an ordinary
   manner,  save for specific rules laid down in that Section. Section 51
   does  not set any specific rules concerning the presence of a mentally
   ill person at trial and appeal hearings.

   D.  Legal capacity

   47.  Under  Article  21 of the Civil Code of the Russian Federation of
   1994,  any  individual  aged  18  or  more  has, as a rule, full legal
   capacity,  which is defined as "the ability to acquire and enjoy civil
   rights,  create  and  fulfil civil obligations by his own acts". Under
   Article  22  of the Civil Code legal capacity can be limited, but only
   on  the  grounds  defined  by law and within a procedure prescribed by
   law.

   48.  Under  Article  29  of  the  Civil  Code,  a  person  who  cannot
   understand  or  control  his  or  her  actions as a result of a mental
   illness may be declared legally incapacitated by the courts and placed
   in  the  care  of  a guardian. All legal transactions on behalf of the
   incapacitated  person are concluded by his guardian. The incapacitated
   person  can  be declared to have regained full capacity if the grounds
   on which he or she was declared incapacitated cease to exist.

   49.  Article  135  (1)  of  the  Code of Civil Procedure of 2002 ("the
   CCP") establishes that a civil claim lodged by a legally incapacitated
   person should be returned to him without examination.

   50.  Article  281 of the CCP establishes the procedure for declaring a
   person  incapacitated.  A request for incapacitation of a mentally ill
   person can be brought before a first-instance court by a family member
   of  the  person  concerned.  On receipt of the request, the judge must
   commission a forensic psychiatric examination of the person concerned.

   51.  Article  284  of the CCP provides that the incapacitation request
   should  be  examined  in  the  presence  of  the person concerned, the
   claimant,  a  prosecutor  and  a  representative  of  the guardianship
   office. The person whose legal capacity is being examined by the court
   is  to  be  summoned  to the court hearing, unless his state of health
   prohibits him from attending it.

   52.  Article  289  of the CCP provides that full legal capacity can be
   restored  by  the court at the request of the individual's guardian, a
   close relative, the guardianship office or a psychiatric hospital, but
   not of the person declared incapacitated himself.

   E.  Confinement to a psychiatric hospital

   53.  The  Psychiatric  Assistance Act of 2 July 1992, as amended ("the
   Act"),  provides that any recourse to psychiatric assistance should be
   voluntary.  However,  a  person  declared  fully  incapacitated may be
   subjected  to psychiatric treatment at the request or with the consent
   of his official guardian (section 4 of the Act).

   54.  Section  5 of the Act establishes that individuals suffering from
   mental  disorders have all human rights and freedoms guaranteed by the
   Russian Constitution and federal laws. Limitations of their rights and
   freedoms  are  only  allowed when specifically provided for by laws of
   the  Russian  Federation.  Section  5 (3) of the Act provides that the
   rights and freedoms of persons with mental illnesses cannot be limited
   solely  on  the grounds of their diagnosis, or the fact that they have
   been subjected to treatment in a psychiatric hospital.

   55.  Under  Section  5 of the Act, a patient in a psychiatric hospital
   can  have  a  legal  representative.  However,  pursuant to point 2 of
   Section  7, the interests of a person declared fully incapacitated are
   represented by his official guardian.

   56.  Section 34 regulates the procedure for involuntary placement of a
   mentally  ill  individual  in  a  psychiatric  hospital. A judge is to
   examine a request for involuntary admission to a psychiatrist hospital
   in  the  presence  of an individual whose placement in the hospital is
   sought.  Section  35  provides that only a judicial order may serve as
   grounds for admission of an individual to a psychiatric hospital. Such
   an  order  may  be  appealed against within ten days by the individual
   whose   detention  in  a  psychiatric  hospital  was  authorised,  his
   representative,  the  head of the psychiatric hospital or a prosecutor
   (Section 35 S: 3 of the Act).

   57.  Section  37  (2)  of  the Act establishes the list of rights of a
   patient  in a psychiatric hospital. In particular, the patient has the
   right  to  communicate  with  his  lawyer without censorship. However,
   under  Section  37  (3)  the  patient's doctor may limit the patient's
   rights  to correspond with other persons, have telephone conversations
   and meet visitors.

   58.  Section  47  of the Act provides that the doctors' actions can be
   appealed against before the courts.

   F.  Changes  in  the  application  of  Russian  law  on  mentally  ill
   individuals  following the Court's judgment in the case of Shtukaturov
   v. Russia (no. 44009/05, 27 March 2008)

   59.  On  27  February  2009  the  Constitutional  Court of the Russian
   Federation  issued  Decree no. 4-P, having declared unconstitutional a
   number  of  provisions  of the Russian Code of Civil Procedure and the
   Psychiatric  Assistance Act limiting rights of mentally ill persons to
   participate  in incapacitation proceedings and to appeal against court
   decisions stripping them of legal capacity.

   60.  In  Resolution no. 6 of 7 April 2011 the Plenary Supreme Court of
   the  Russian  Federation  held  that  a  person  whose  admission to a
   psychiatric hospital was authorised or whose detention in hospital was
   extended  by  a  court  has the right to appeal against that decision,
   along  with  his lawyer, legal guardian or other persons authorised to
   do  it  by  the Russian Code of Criminal Procedure (S: 8). The Plenary
   Supreme Court also stressed that, unless the accused's state of mental
   health  precludes  it, an individual against whom criminal proceedings
   are  pending  should  have the opportunity to make use, personally, of
   every procedural right guaranteed by Articles 46 and 47 of the Code of
   Criminal  Procedure  (the  right to be informed of the charges against
   him  and  to  receive  related procedural documents, the right to give
   explanations  and  make  statements  or to remain silent, the right to
   legal  assistance,  the  right  to submit evidence, the right to lodge
   requests,  complaints, etc. and to participate in their examination by
   a  court,  the  right  to  an interpreter, the right to appeal against
   actions/inaction   on   the   part   of   the   courts,   prosecutors,
   investigators, etc., the right to attend hearings before the trial and
   appeal  courts,  as well as hearings concerning detention matters, and
   so  on).  The  courts should take into account expert reports, medical
   and  other  evidence,  including  that  provided  by  the  psychiatric
   hospital, to determine whether the individual's state of mental health
   permits  him/her  to  fully benefit from his/her procedural rights (S:
   10).

   61.  The  Plenary Supreme Court insisted that it was the trial court's
   task  to  duly  and  timeously inform the person of the date, time and
   place  of  any  court  hearing  so  as  to  provide  him/her  with  an
   opportunity  to submit various procedural requests, including that for
   his/her attendance (S: 13).

   THE LAW

   I.  ALLEGED VIOLATION OF ARTICLE 5 S: 1 OF THE CONVENTION

   62.  The  applicant  complained under Article 5 S: 1 of the Convention
   that  his  detention between 27 January and 18 August 2003 in facility
   no.  1  had  been  unlawful,  having  been  based  on two incompatible
   detention orders. Article 5, in so far as relevant, reads as follows:

   "1.  Everyone  has the right to liberty and security of person. No one
   shall  be  deprived  of his liberty save in the following cases and in
   accordance with a procedure prescribed by law:...

   (c)  the  lawful  arrest  or  detention  of  a person effected for the
   purpose  of  bringing  him  before  the  competent  legal authority on
   reasonable  suspicion  of  having  committed  an offence or when it is
   reasonably  considered  necessary to prevent his committing an offence
   or fleeing after having done so;

   ...

   (e)  the lawful detention... of persons of unsound mind..."

   A.  Submissions by the parties

   63.  The  Government  argued  that on 23 January 2003 a prosecutor had
   petitioned  for  the  applicant's arrest, taking into account the fact
   that the latter had suffered from a serious mental disorder, confirmed
   by  the  expert  opinion of 21 November 2002, and, given the nature of
   the  crime  he had been accused of, had presented a danger to the life
   and limb of the victim and witnesses. The Industrialniy District Court
   had  accepted the motion and had authorised the applicant's detention.
   A  single detention order had been issued on that occasion calling for
   the  applicant's  placement  in a psychiatric hospital. The Government
   stressed that no other detention order had been found in the case file
   materials.

   64.  The  Government  further  submitted that in view of the fact that
   there  had  been no "suitable" psychiatric hospital in the Perm Region
   and  in  line with established judicial practice, the applicant was to
   have  been sent to a psychiatric hospital in Kaliningrad. However, his
   transfer  had  been  delayed  because  the  Lithuanian authorities had
   refused  to  issue  him  with  a  transit visa. A further delay in the
   applicant's  admission  to the hospital had been caused by the refusal
   of  the  administration  of the psychiatric hospital in Kazan to admit
   him  in  the absence of valid identification documents. The Government
   concluded  by stating that the applicant's detention in facility no. 1
   in  Perm  had been reasonable and lawful, having been based on a valid
   court  order issued in compliance with the requirements of the Russian
   Code of Criminal Procedure and upheld by the appeal court.

   65.  The  applicant  disagreed  with the Government, insisting that on
   27 January  2003  the  District Court had issued two detention orders,
   the  first one authorising his admission to a psychiatric hospital and
   the  second  one  prescribing  his  detention  in  a regular detention
   facility. Accordingly, his detention from 27 January to 18 August 2003
   had not been carried out "in accordance with a procedure prescribed by
   law"  and  had  been  unlawful.  Furthermore, he had been detained for
   almost  seven  months  in  a  regular  detention facility although the
   authorities had cited his mental illness as the primary ground for his
   detention  and the Government did not dispute that the domestic courts
   had intended to detain him in a psychiatric hospital.

   B.  The Court's assessment

   1.  Admissibility

   66.  The  Court  reiterates  that Article 5 S: 1 sub-paragraphs (a) to
   (f)  of  the  Convention  contain  an  exhaustive  list of permissible
   grounds  for deprivation of liberty and no deprivation of liberty will
   be  lawful  unless  it  falls  within one of those grounds (see, inter
   alia,  Guzzardi  v.  Italy,  6 November  1980, S: 96, Series A no. 39;
   Witold  Litwa v. Poland, no. 26629/95, S: 49, ECHR 2000-III; and Saadi
   v.  the  United  Kingdom  [GC],  no.  13229/03, S: 43, ECHR 2008-...).
   However, the applicability of one ground does not necessarily preclude
   that  of  another:  detention  may, depending on the circumstances, be
   justified  under  more  than one sub-paragraph (see Eriksen v. Norway,
   27 May  1997,  S: 76, Reports of Judgments and Decisions 1997-III, and
   Erkalo v. the Netherlands, 2 September 1998, S: 50, Reports 1998-VI).

   67.  The  Court  considers  that  in  the instant case the applicant's
   detention from 27 January to 18 August 2003 should be divided into two
   separate periods, having regard to the subparagraphs of paragraph 1 of
   Article  5  of  the  Convention  under which each particular period of
   detention  fell.  The  Court  observes  that  on  27  January 2003 the
   Industrialniy  District  Court  authorised  the applicant's detention,
   finding that the gravity of the charges against him and his presenting
   a  danger  to  society  in  view  of  his mental illness warranted the
   deprivation  of  liberty. On 18 February 2003 the District Court found
   that  the  applicant  had  committed extortion. It, however, concluded
   that  the  applicant's  mental  illness  precluded  him  from  bearing
   criminal  responsibility and serving a sentence. He was to be admitted
   to  a  psychiatric hospital for compulsory treatment. Accordingly, the
   Court considers that the detention of the applicant from 27 January to
   18 February  2003 falls within Article 5 S: 1 (c) of the Convention as
   it  was  effected for the purpose of bringing him before the competent
   legal  authority on criminal charges based, as was not disputed by the
   parties,  on  a  reasonable  suspicion  of  his  having  committed the
   offences  he was charged with. In turn, the period from 18 February to
   18 August  2003 falls within subparagraph (a) of Article 5 S: 1 of the
   Convention  as it resulted from a "conviction" by a "competent court".
   Furthermore,  as  follows from the Government's submissions, since the
   applicant  -  who  was  suffering  from  a mental disorder - was to be
   detained  after  27  January  2003  in  a psychiatric institution, his
   detention  starting  from  that  date  until 18 August 2003 also falls
   within  the  ambit  of  Article 5 S: 1 (e) of the Convention (see, for
   similar  reasoning,  Erkalo,  cited  above,  S: 51, and Morsink v. the
   Netherlands, no. 48865/99, S: 62, 11 May 2004).

   68.  Having  divided  the applicant's detention between 27 January and
   18 August  2003  into  two  separate  periods,  the Court must further
   determine  whether  the  applicant has complied with the admissibility
   requirements  defined  in  Article  35  S:  1  of  the  Convention, in
   particular  the  six-month  rule. The applicant lodged his application
   with the Court on 21 August 2003 - that is, more than six months after
   the  first period of detention came to an end on 18 February 2003. He,
   however,  challenged  the  grounds  for his detention during the first
   period  by lodging an appeal statement before the Perm Regional Court.
   The  appeal  was  never  examined  (see  paragraph  [1]28  above). The
   applicant  was  not  apprised of the outcome of the appeal proceedings
   and  he was not served with any decision explaining the reason for the
   Regional  Court's  silence. In fact, he only learned about the fate of
   his  appeal from the Government's submissions. In those circumstances,
   the  Court  considers  that  the  later date should be regarded as the
   final  decision for the purposes of Article 35 S: 1 of the Convention.
   The  applicant, therefore, has not failed to comply with the six-month
   requirement  and  his  complaint  concerning  the  lawfulness  of  his
   detention  from  27  January  to  18 February  2003 cannot be rejected
   pursuant to Article 35 S: 4 of the Convention.

   69.  The  Court further notes that this part of the application is not
   manifestly  ill-founded  within  the meaning of Article 35 S: 3 (a) of
   the  Convention  and that it is not inadmissible on any other grounds.
   It must therefore be declared admissible.

   2.  Merits

   (a)  Detention from 27 January to 18 February 2003

   70.  The Court observes at the outset that Article 5 of the Convention
   protects  the  right to liberty and security. This right is of primary
   importance  "in  a  democratic  society"  within  the  meaning  of the
   Convention  (see,  amongst  many other authorities, De Wilde, Ooms and
   Versyp  v. Belgium, 18 June 1971, S: 65, Series A no. 12; Assanidze v.
   Georgia  [GC],  no. 71503/01,  S:  169,  ECHR  2004-II;  and Ladent v.
   Poland, no. 11036/03, S: 45, ECHR 2008-...).

   71.  All persons are entitled to the protection of this right, that is
   to  say,  not  to  be  deprived,  or continue to be deprived, of their
   liberty, save in accordance with the conditions specified in paragraph
   1  of Article 5 (see Medvedyev and Others v. France [GC], no. 3394/03,
   S: 77, ECHR 2010-...). Against this background, it must, therefore, be
   established  whether  the detention of the applicant during the period
   under  consideration was "in accordance with a procedure prescribed by
   law"  and  "lawful"  within  the  meaning  of  Article  5  S: 1 of the
   Convention. Where the "lawfulness" of detention is in issue, including
   the  question  whether  "a  procedure  prescribed  by  law"  has  been
   followed,  the  Convention essentially refers back to national law and
   states  the  obligation  to  conform to the substantive and procedural
   rules  thereof.  It  requires at the same time that any deprivation of
   liberty  should  be in conformity with the purpose of Article 5, which
   is  to  prevent  people  from  being  deprived  of their liberty in an
   arbitrary  fashion  (see  Bozano  v.  France, 18 December 1986, S: 54,
   Series  A  no. 111, and Kafkaris v. Cyprus [GC], no. 21906/04, S: 116,
   12 February 2008).

   72.  Turning to the circumstances of the present case, the Court finds
   it  established  that  on  27  January 2003 the Industrialniy District
   Court  issued  two  decisions authorising the applicant's placement in
   custody.  Those  decisions  only differed in one respect: the place of
   the  applicant's detention. Despite the Government's argument that the
   decision   authorising   the  applicant's  detention  in  an  ordinary
   detention  facility  was not attached to the case file, the Court sees
   no  reason to doubt the authenticity of the two decisions presented to
   it  by  the  applicant.  Both decisions bear the signature of the same
   presiding  judge  and  the official stamp of the court's registry (see
   paragraph  [2]24  above).  The  Court  is also unable to interpret the
   difference  in  the  texts  of  the decisions as a mere clerical error
   committed  when  a  handwritten  version of the decision of 27 January
   2003 was transformed into a typed one. That conclusion is supported by
   the  fact  that  following the applicant's arrest in the courthouse he
   was  taken  to  detention facility no. 1, where he was kept for almost
   seven months.

   73.  The Court once again reiterates that the expressions "lawful" and
   "in  accordance  with a procedure prescribed by law" in Article 5 S: 1
   state  the  obligation  to  conform  to the substantive and procedural
   rules  of  national  law.  It further observes that it is in the first
   place  for  the national authorities, notably the courts, to interpret
   and apply domestic law. However, since under Article 5 S: 1 failure to
   comply  with  domestic  law  entails  a  breach  of the Convention, it
   follows  that  the  Court  can  and should exercise a certain power to
   review  whether  the  law  has  been complied with (see N.C. v. Italy,
   no. 24952/94,  S: 42,  11  January 2001, with further references). The
   Court  notes  that the Government did not indicate any legal provision
   that   permitted  the  District  Court  to  simultaneously  issue  two
   decisions  authorising  the  applicant's  detention  in  a psychiatric
   hospital  and  in  an ordinary detention facility. The Government also
   did  not  argue  that  it was possible under domestic law to alter the
   operative part of a detention order after it has been read out in open
   court. In these circumstances, the Court is bound to conclude that the
   situation  created  by  the District Court on 27 January 2003 left the
   applicant  in  a  state  of  uncertainty as to the legal basis for his
   detention, a state incompatible with the principles of legal certainty
   and protection from arbitrariness, which are common threads throughout
   the  Convention and the rule of law (see, mutatis mutandis, Shukhardin
   v.  Russia,  no.  65734/01,  S: 84,  28  June  2007, and, by contrast,
   Douiyeb  v. the Netherlands [GC], no. 31464/96, S: 52, 4 August 1999).
   Without  speculating on the motives which drove the presiding judge to
   amend  the operative part of the detention order, the Court is mindful
   of   the   Government's  submission  that  there  was  no  psychiatric
   institution  in  the Perm Region suitable for detention of individuals
   such  as  the applicant (see paragraph [3]64 above). However, whatever
   the  reasons  on  which  the  presiding  judge's decision to amend the
   detention order of 27 January 2003 was based, the Court finds that his
   actions  were  arbitrarily  disregarding  the fundamental principle of
   fairness.

   74.  In  conclusion,  for  the  purposes  of the applicant's complaint
   under Article 5 S: 1 of the Convention, the Court finds it established
   that  the  flaw  in  the  initial  authorisation  of  the  applicant's
   detention  on  27  January  2003  amounted  to  a  "gross  and obvious
   irregularity"  and was of such a nature so as to render the underlying
   period of his detention until 18 February 2003 unlawful (see Mooren v.
   Germany [GC], no. 11364/03, S:S: 82-87, 9 July 2009).

   75.  Accordingly,  the  Court finds that there has been a violation of
   Article  5  S:  1  of  the Convention in respect of that period of the
   applicant's detention.

   (b)  Detention from 18 February to 18 August 2003

   76.  The  Court  observes that on 18 February 2003, having established
   that the applicant had committed a criminal offense, the Industrialniy
   District  Court authorised his detention in a psychiatric hospital for
   compulsory   treatment  of  his  mental  disorder.  According  to  the
   Government,  the applicant's admission to the psychiatric hospital was
   delayed  by  six  months: initially due to the Lithuanian authorities'
   refusal  to  issue  a  transit  visa  for  him  to be transferred to a
   hospital  in  Kaliningrad;  and  subsequently  in  view  of  a lack of
   identification documents, which precluded the applicant's admission to
   a psychiatric hospital in Kazan.

   77.  The Court accepts, in the light of the parties' submissions, that
   the   applicant's   detention   as   such   during  the  period  under
   consideration  was  lawful  under domestic law. However, it once again
   notes  that  for  the  purposes  of  Article  5 of the Convention, the
   lawfulness  of  the applicant's detention under domestic law is not in
   itself decisive. It must also be established that his detention during
   the relevant period was in conformity with the purpose of Article 5 S:
   1  of the Convention, that is that is was devoid of arbitrariness (see
   Witold Litwa, cited above, S:S: 72-73).

   78.  In  this  connection,  the Court observes that there must be some
   relationship  between  the  ground of permitted deprivation of liberty
   relied on and the place and conditions of detention. In principle, the
   "detention"  of  a  person  as  a  mental  health patient will only be
   "lawful"  for  the  purposes  of  sub-paragraph  (e) of paragraph 1 if
   effected  in  a hospital, clinic or other appropriate institution (see
   Hutchison  Reid  v.  the  United  Kingdom,  no. 50272/99,  S: 48, ECHR
   2003-IV,   with   further   references).   The  Court  reiterates  the
   Government's  argument that pending the transfer of the applicant to a
   psychiatric  hospital  he  had  been  kept  in a cell for mentally ill
   inmates  in  detention  facility no. 1. The Government did not explain
   the  difference  in  detention arrangements in a cell for mentally ill
   detainees  and  from that of a regular cell of the detention facility.
   Further,  they  did  not  argue that the applicant had received either
   regular  medical  attention  in  respect  of  his  illness or that the
   conditions of his detention had constituted a therapeutic environment.
   Given this fact, the Court considers that the cell where the applicant
   was  detained  could not be regarded as an institution appropriate for
   the  detention of persons of unsound mind (see, for similar reasoning,
   Aerts v. Belgium, 30 July 1998, S: 49, Reports 1998-V).

   79.  The  Court  has  already had a number of opportunities to examine
   complaints  similar  to the one raised by the applicant in the present
   case,  having  accepted  that  domestic authorities may need a certain
   amount  of  time to select the most appropriate custodial clinic for a
   convicted  applicant  suffering  from  a  mental  disorder  and that a
   certain disparity between available and required capacity in custodial
   clinics  is  inevitable  (see, for example, Morsink, cited above, S:S:
   66-68,  and Brand v. the Netherlands, no. 49902/99, S:S: 60-66, 11 May
   2004).  At  the  same  time,  the Court has stressed that a reasonable
   balance  must  be  struck between the competing interests involved. On
   this  point, reiterating the importance of Article 5 in the Convention
   system,  the  Court  has  been  of  the  opinion that in striking this
   balance  particular weight should be given to the applicant's right to
   liberty,  taking into account that a significant delay in admission to
   a  custodial  clinic  and  thus  the beginning of the treatment of the
   person   concerned   would  obviously  affect  the  prospects  of  the
   treatment's  success.  In particular, the Court has found that, in the
   absence  of  exceptional  and  unforeseeable  grounds,  a delay of six
   months  in  the  admission  of  a  person  to  a  custodial clinic was
   impermissible (see Brand, cited above, S: 66).

   80.  The  Court  sees no reason to reach a different conclusion in the
   present case. It cannot find that, in the circumstances of the present
   case,  a  reasonable  balance  was  struck.  The  Government cited two
   circumstances producing a six-month delay in the applicant's admission
   to  hospital:  the  inability  to  obtain  a  visa  and the absence of
   identification  documents. Without encroaching on the State's right to
   determine  an  appropriate  psychiatric institution for the applicant,
   the  Court  cannot  accept  the authorities' determination, for such a
   long  period  and  despite the impossibility of obtaining a Lithuanian
   transit visa, to admit the applicant to a hospital in Kaliningrad. The
   Court  is  particularly  mindful  of the absence of an argument on the
   Government's  part  that  other  hospitals  in  Russia  were unable to
   accommodate  the  applicant.  It  further goes without saying that the
   authorities'  failure  to  comply  with  the rather pedestrian task of
   serving the applicant with appropriate identification papers cannot be
   accepted   as  grounds  for  delaying  the  applicant's  placement  in
   hospital.

   81.  To sum up, bearing in mind that the authorities' should have been
   aware  of  the  necessity  to comply with the visa formalities if they
   were  to  transfer the applicant to a hospital in Kaliningrad and that
   they  were  under  an obligation to prepare in advance and provide the
   applicant with the requisite identification documents, the Court finds
   no  indication  in  the  instant  case that, at the material time, the
   authorities  were  faced with an exceptional and unforeseen situation.
   It  is  therefore  of  the  opinion  that a delay of six months in the
   admission  of  the  applicant  to  a  psychiatric  hospital  cannot be
   regarded  as  acceptable.  To  hold  otherwise  would entail a serious
   weakening  of the fundamental right to liberty to the detriment of the
   person  concerned  and  thus  impair  the  very  essence  of the right
   protected by Article 5 of the Convention (see Morsink, cited above, S:
   69).

   82.  There has, accordingly, been a violation of Article 5 S: 1 of the
   Convention on account of the applicant's detention from 18 February to
   18 August 2003.

   II.  ALLEGED VIOLATION OF ARTICLE 5 S: 4 OF THE CONVENTION

   83.  The  applicant  complained  that his appeal against the detention
   order of 27 January 2003 had never been examined. He relied on Article
   5 S: 4 of the Convention which provides as follows:

   "Everyone  who is deprived of his liberty by arrest or detention shall
   be  entitled  to  take  proceedings  by  which  the  lawfulness of his
   detention shall be decided speedily by a court and his release ordered
   if the detention is not lawful."

   A.  Submissions by the parties

   84.  The  Government  confirmed  that the Industrialniy District Court
   had   received  the  applicant's  statement  of  appeal  and  the  two
   subsequent   amended   statements   against  the  detention  order  of
   27 January  2003.  Having  provided  the  Court  with  copies of those
   statements,  the  Government stressed that the case file materials did
   not  contain  any  indication  that the appeal court had ever examined
   them.  At the same time, relying on Article 444 of the Russian Code of
   Criminal  Procedure,  the Government noted that a decision authorising
   the  application  of  compulsory  measures  of  a medical nature to an
   individual could be appealed against by, inter alia, a lawyer, a legal
   guardian  or  a  close  relative of that individual. A person declared
   legally  incapacitated  cannot  exercise  the  procedural  rights of a
   defendant  because  he  is unable to assess and control his actions in
   view  of  the  state  of  his mental health. The Government noted that
   neither  the  applicant's  lawyer  nor his legal guardian had appealed
   against the decision of 27 January 2003.

   85.  The  applicant, firstly, observed that the Government incorrectly
   relied  on Article 444 of the CCrP, because the decision of 27 January
   2003  had not concerned compulsory measures of a medical nature. Those
   measures had been applied by the judgment of 18 February 2003 when the
   District  Court had examined the criminal case against him. Citing the
   Court's  findings  in  the  case  of Winterwerp v. the Netherlands (24
   October  1979, Series A no. 33), the applicant further argued that the
   domestic  courts  had  entirely and without any justification or legal
   basis  impaired  the very essence of his right to judicial supervision
   of the lawfulness of his detention.

   B.  The Court's assesment

   1.  Admissibility

   86.  The Court notes that this complaint is not manifestly ill-founded
   within  the  meaning  of  Article  35  S:  3 (a) of the Convention. It
   further  notes  that  it  is not inadmissible on any other grounds and
   that it must therefore be declared admissible.

   2.  Merits

   (a)  General principles

   87.  The Court observes that Article 5 S: 4 of the Convention entitles
   arrested  or  detained persons to a review bearing upon the procedural
   and  substantive  conditions which are essential for the "lawfulness",
   in  Convention terms, of their deprivation of liberty. This means that
   the  competent  court  has  to  examine  not  only compliance with the
   procedural requirements of domestic law but also the reasonableness of
   the  suspicion  underpinning  the  arrest  and  the  legitimacy of the
   purpose  pursued by the arrest and the ensuing detention (see Grauslys
   v.  Lithuania,  no.  36743/97,  S: 53,  10  October 2000). In order to
   satisfy  the  requirements  of  Article  5  S:  4 of the Convention, a
   "review  of  the  lawfulness of the applicant's detention" must comply
   with  both  the  substantive  and  procedural  rules  of  the national
   legislation  and  moreover  be conducted in conformity with the aim of
   Article 5, namely to protect the individual against arbitrariness (see
   Keus v. the Netherlands, 25 October 1990, S: 24, Series A no. 185-C).

   88.  The  existence  of  the remedy required by Article 5 S: 4 must be
   sufficiently certain, not only in theory but also in practice, failing
   which  it  will  lack the accessibility and effectiveness required for
   the purposes of that provision (see Had/i v. Croatia, no. 42998/08, S:
   41,  1  July  2010,  with  further references). The accessibility of a
   remedy implies, inter alia, that the circumstances voluntarily created
   by  the  authorities  must be such as to afford applicants a realistic
   possibility  of  using  the  remedy  (see,  mutatis mutandis, Чonka v.
   Belgium, no. 51564/99, S:S: 46 and 55, ECHR 2002-I).

   (b)  Application of the principles to the present case

   89.  On  the  facts  of  the  present case, the Court notes that on 27
   January  2003  the District Court authorised the applicant's arrest in
   view  of the gravity of the charges against him and his being a danger
   to  society owing to his suffering from schizophrenia. The applicant's
   appeal against that decision, as well as the two subsequent additional
   appeal statements, was left without response.

   90.  In  this respect, the Court reiterates that Article 5 S: 4 of the
   Convention  does not require setting up a second level of jurisdiction
   for  the  examination  of  applications  for  release  from detention.
   Nevertheless,  a  State  which institutes such a system must accord to
   detainees the same guarantees on appeal as at first instance (see Toth
   v.  Austria,  12  December  1991,  S: 84, Series A no. 224, Navarra v.
   France,  23  November 1993, S: 28, Series A no. 273-B, and Solovyev v.
   Russia, no. 2708/02, S: 129, 24 May 2007).

   91.  The  Government,  citing  Article  444  of  the  Russian  Code of
   Criminal  Procedure,  argued  that, by reason of his mental condition,
   the applicant had been stripped of the right to challenge the decision
   by  which  his detention had been authorised. In their opinion, it was
   for  the applicant's lawyer or a close relative to step in and file an
   appeal.  The  Court,  however,  is  unable  to accept the Government's
   reading  of  Article  444.  It observes that this legal provision only
   identifies  those  with  the  standing to appeal against a decision by
   which   a  trial  court  has  authorised  the  compulsory  psychiatric
   treatment  of a defendant who had committed a crime and whom the trial
   court  has found unable to bear criminal responsibility and to serve a
   sentence on account of mental illness (see paragraph [4]45 above). The
   Government  did  not  rely  on  any  other  provision  curtailing  the
   applicant's  right to state his case as regards the deprivation of his
   liberty  before an appeal court. The Court therefore finds that it was
   open  to the applicant under Russian law to personally lodge an appeal
   against  the  detention  order of 27 January 2003 (see paragraph [5]42
   above).

   92.  The  applicant  attempted  to  make use of the avenue open to him
   under  Russian law. However, his appeal was never examined.  The Court
   would like to reiterate that Article 5 S: 4 of the Convention requires
   that certain procedural rights of a detained person must be respected.
   These need not be the same as the guarantees of "a fair hearing" under
   Article  6  S: 1 of the Convention and they should take account of the
   possibility,  in  the context of the deprivation of liberty of persons
   of  unsound  mind,  that  those persons may be personally incapable of
   using  their  procedural  rights.  Accordingly, the prescribed minimum
   must ensure that that the mentally ill person has access to the courts
   and  the  opportunity  to  be  heard either in person, if possible, or
   through  a legal representative, where his condition demands this (see
   Winterwerp  v.  the  Netherlands,  cited  above,  S: 60). The Court is
   prepared to tolerate certain limitations on the exercise of this right
   where  justified  by  the  circumstances  (see,  for  instance,  X. v.
   Belgium,  no. 6692/74, Commission decision of 13 March 1975, Decisions
   and  Reports  (DR)  2,  p. 108,  concerning the introduction of a time
   limit   on  applications  for  release).  In  the  present  case,  the
   Government  did not cite any justification, apart from the applicant's
   mental illness, for the court's silence towards his appeal against the
   detention order. However, it would be inconceivable, in the opinion of
   the  Court,  that  Article  5  S:  4  of  the Convention should afford
   procedural  guarantees  to  a  party whose detention matter is pending
   before  a court without also protecting what makes it in fact possible
   to  benefit  from such guarantees - that is, the possibility to access
   the  court  by  making  an application to review the lawfulness of the
   detention.  The  effective and expeditious characteristics of judicial
   review  of the lawfulness of detention are of no value at all if there
   are  no  judicial  proceedings. The Court will not accept the state of
   mind  of  a  detained  person,  on  its own, as an implied and blanket
   limitation  on  his right to institute judicial review proceedings for
   the purpose of Article 5 S: 4 of the Convention, particularly so when,
   as  in the present case, no assessment of his ability to be personally
   involved  in the proceedings leading to his detention was performed by
   the  court  and no formal court decision explaining the reasons behind
   the  refusal  to examine the appeal was issued. The importance of what
   is at stake - personal liberty - compels this conclusion.

   93.  In   summary,  the  Court  has  frequently  found  violations  of
   Article 5 S: 4  of  the  Convention in cases raising issues similar to
   the one in the present case (see Solovyev v. Russia, cited above, S:S:
   130-134;  Ignatov  v. Russia, no. 27193/02, S:S: 115-119, 24 May 2007;
   and Makarenko v. Russia, no. 5962/03, S:S: 122-125, 22 December 2009).
   The  Court  notes that the Government have not put forward any fact or
   argument  capable  of persuading it to reach a different conclusion in
   the present case. Having regard to the appeal court's disregard of its
   obligation  to examine the issue of the applicant's arrest and to take
   cognisance  of  any arguments concerning the aspects of the lawfulness
   of his detention, the Court considers that the applicant was unable to
   obtain  an adequate judicial response for the purposes of Article 5 S:
   4  and  that his right to bring proceedings by which the lawfulness of
   his detention would be decided was infringed.

   94.  It  follows  that there has been a violation of Article 5 S: 4 of
   the  Convention on account of the failure to consider the substance of
   the applicant's appeal against the detention order of 27 January 2003.

   III.  ALLEGED  VIOLATION  OF  ARTICLE  6  S:S:  1  and  3  (c)  OF THE
   CONVENTION

   95.  Relying  on  Article  6  S:S:  1 and 3 (c) of the Convention, the
   applicant  further complained of failure to ensure his presence before
   the  trial  and  appeal  courts  which  had examined the criminal case
   against  him. Article 6 S:S: 1 and 3 (c) of the Convention read, in so
   far as relevant, as follows:

   "1.  In  the  determination  of  ...  any criminal charge against him,
   everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

   ...

   3.  Everyone charged with a criminal offence has the following minimum
   rights:

   ...

   (c)  to  defend  himself  in person or through legal assistance of his
   own  choosing  or,  if  he  has  not sufficient means to pay for legal
   assistance,  to  be  given  it  free  when the interests of justice so
   require;..."

   A.  Submissions by the parties

   96.  The  Government  submitted that the applicant's criminal case had
   been  heard  in  compliance with the requirements of Section 51 of the
   Russian  Code of Criminal Procedure. According to the Government, that
   Section  did not prescribe mandatory attendance at court hearings by a
   mentally ill defendant. At the same time, it guaranteed the protection
   of  the  interests of a mentally ill defendant through mandatory legal
   assistance  and  representation  by  a  legal guardian. The Government
   maintained  that the applicant had been declared legally incapacitated
   on  20  February  2003,  following  which  his legal guardian had been
   entrusted  with  the task of representing his interests and exercising
   procedural  rights,  including  the  right  to  file  a motion for the
   applicant's  presence before the appeal court. However, such a request
   had never been filed. Furthermore, the applicant's lawyer had attended
   the hearings and had ensured the applicant's defence.

   97.  In  their  additional  observations  the Government amended their
   submissions, arguing that despite the fact that it was not until 6 May
   2003  that the Industrialniy District Court had declared the applicant
   legally   incapacitated,  the  psychiatric  expert  report  issued  in
   November  2002 should be taken as a starting point for the transfer of
   the  procedural  rights of a defendant from the applicant to his legal
   guardian  and his lawyer. The Government noted that in compliance with
   judicial  practice  at  the  material time, in the eyes of the Russian
   criminal  justice  system the applicant had been incapable of properly
   exercising his rights as a defendant after November 2002.

   98.  The applicant maintained his complaint, observing that he had had
   legal  capacity throughout the entire criminal proceedings and that he
   therefore should have been afforded an opportunity to attend the trial
   and  appeal  hearings. The applicant also noted that Section 51 of the
   CCrP  prescribes  the  examination in an ordinary manner of a criminal
   case  involving  an  allegedly mentally ill defendant. It does not set
   out  specific  rules  limiting  the  defendant's  procedural rights or
   impairing his legal standing.

   B.  The Court's assessment

   1.  Admissibility

   99.  The Court notes that this complaint is not manifestly ill-founded
   within  the  meaning  of  Article  35  S:  3 (a) of the Convention. It
   further  notes  that  it  is not inadmissible on any other grounds and
   that it must therefore be declared admissible.

   2.  Merits

   100.  The  Court  reiterates  that  it flows from the notion of a fair
   trial  that  a  person  charged  with  a criminal offence should, as a
   general   principle,   be  entitled  to  be  present  and  participate
   effectively  in  the  criminal  proceedings  (see Colozza v. Italy, 12
   February  1985, S:S: 27 and 29, Series A no. 89). In the present case,
   this  requirement was not satisfied because the District Court decided
   the  applicant's case in his absence. The applicant was also not given
   an  opportunity  to  appear  before  the  appeal court. The Court has,
   therefore,   to   decide   whether   the  instant  case  involved  any
   circumstances  which were capable of justifying a complete loss by the
   applicant of the entitlement to be present.

   101.  The  Court  reiterates  that the object and purpose of Article 6
   S:S: 1 and 3 (c) presuppose the accused's presence. The State is under
   an obligation to secure the attendance of an accused who is in custody
   (see,  mutatis mutandis, Goddi v. Italy, 9 April 1984, S: 29, Series A
   no.  76).  It  is  of capital importance that a defendant appear, both
   because  of  his  right to a hearing and because of the need to verify
   the  accuracy  of  his  statements  and  compare  them  with  those of
   witnesses  (see  Van  Geyseghem  v. Belgium [GC], no. 26103/95, S: 33,
   ECHR  1999-I).  The  Court reiterates further that the trial court may
   exceptionally continue hearings where the accused is absent on account
   of  illness,  provided  that  his  or  her  interests are sufficiently
   protected  (see  Ninn-Hansen  v. Denmark (dec.), no. 28972/95, p. 351,
   ECHR  1999-V). However, where proceedings involve 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 is 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 (see Kremzow v. Austria,
   21  September 1993, S: 67, Series A no. 268-B; Pobornikoff v. Austria,
   no.  28501/95,  S: 31, 3 October 2000; and Zana v. Turkey, 25 November
   1997, S:S: 71-73, Reports 1997-VII).

   102.  In   the  present  case  the  authorities  did  not  ensure  the
   applicant's  appearance  before  the trial and appeal courts, alleging
   that  domestic law did not call for his presence in view of his mental
   condition.  The  Court also observes the Government's submissions that
   the  loss of legal capacity by the applicant, either on 20 February or
   6 May 2003, resulted in the domestic courts' decision not to bring him
   to  the  hearings.  The  Government later amended their claim, arguing
   that  the  applicant's procedural rights, including that to a hearing,
   were  automatically transferred to his mother and lawyer following his
   being  declared  mentally  ill  by the psychiatrists from the Serbskiy
   Centre  in  November  2002.  While  noting that it was not until 6 May
   2003,  i.e.  almost  a  month  after  the  termination of the criminal
   proceedings,  that  the applicant was pronounced legally incapacitated
   (see  paragraph  [6]34  above),  the  Court  considers this to have no
   bearing on the case. It believes that, although not having an absolute
   character, the right of being heard enjoys such a prominent place in a
   democratic society and has such a fundamental value for the protection
   of   an  individual  against  arbitrariness  on  the  part  of  public
   authorities,  that  the  mere  fact of the individual suffering from a
   mental  illness,  as well as his being declared legally incapacitated,
   cannot  automatically  lead  to  the exclusion of the exercise of that
   right  altogether. It is the very weakness of a mentally ill defendant
   which  should  enhance  the  need  for  supporting his rights. In this
   context,  authorities  must  show  requisite diligence in ensuring the
   accused's  right  to  be  present  in an effective manner and must act
   particularly  carefully  when infringing upon that right, so as not to
   place  the  mentally  ill  at  a disadvantage when compared with other
   defendants who do enjoy such a right (see, mutatis mutandis, F.C.B. v.
   Italy,  28  August  1991, S: 33, Series A no. 208-B). The Court is not
   convinced that the Russian courts complied with that responsibility in
   the present case.

   103.  In  particular,  there  is no indication that the Russian courts
   made  a proper assessment of the applicant's ability to participate at
   a  qualified  level  in  the  criminal  proceedings  against  him. The
   applicant  only  appeared  before  the  trial  court once during, what
   appears  to  be, a short meeting aimed at authorising his detention on
   remand  on  27  January  2003.  The  Court  does not believe that this
   meeting  was  sufficient  for  the  District  Court to decide that his
   attendance  at  the  trial  hearings was undesirable. The absence of a
   formal  decision  dealing with the issue of the applicant's attendance
   also does not escape the Court's attention. Furthermore, the applicant
   never appeared before the appeal court judges. In turn, the Court does
   not  see  any evidence convincingly demonstrating that the applicant's
   behaviour  or  his  mental condition precluded his stating his case in
   open court.

   104.  The  Court further notes that the domestic courts decided on the
   criminal  charge  against  the  applicant,  found  him  unfit  to bear
   criminal  responsibility  owing  to  his mental health and ordered his
   confinement  in  a  psychiatric  institution.  Their argument that the
   applicant's  presence  was  not  required purely on the grounds of his
   being  a  mentally disturbed person is striking, given that it was for
   the  courts  to  determine  whether  he had committed the offence in a
   deranged  state  of  mind  and  to assess whether his mental condition
   required   compulsory   medical  care  (see,  Romanov  v. Russia,  no.
   63993/00,  S: 109,  20 October 2005). The Court strongly believes that
   sentencing  decisions  concerning  placement  or  treatment for mental
   disorder  should  be made by courts on the basis of valid and reliable
   standards of medical expertise and after taking into consideration the
   need  for  persons  with  a  mental  disorder to be treated in a place
   appropriate  for  their  health  needs.  The Court considers that in a
   situation where the trial court was unconvinced by the expert findings
   of  the Serbskiy Centre, considered another psychiatric examination of
   the  applicant a necessity, but did not receive the results of the new
   expert  assessment in time for conviction (see paragraph [7]31 above),
   it  was  particularly  important  that  the  judges  should  hear  the
   applicant  in  person and be satisfied as to his condition. In view of
   what  was  at  stake  for  the  applicant the courts could not, if the
   criminal proceedings were to be fair, have decided on his case without
   observing   the  applicant's  demeanour  and  directly  assessing  the
   evidence  submitted by him. The presence of the applicant's lawyer and
   mother could not compensate for the applicant's inability to state his
   own  case  by  appearing before the court (see, for similar reasoning,
   Romanov,  cited  above,  S:  112,  and,  mutatis mutandis, Mamedova v.
   Russia,  no. 7064/05,  1  June 2006, and Duda v. Poland, no. 67016/01,
   19 December 2006).

   105.  In  view of the above considerations the Court finds a breach of
   Article 6 S:S: 1 and 3 (c) of the Convention.

   IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

   106.  Lastly, the Court has examined the other complaints submitted by
   the  applicant,  including his complaints under Articles 5 S: 1 and 13
   of  the  Convention  about  his  detention  in 1999 and 2000 and those
   raised  by the applicant in the application form lodged on 14 December
   2006.  However,  having  regard to all the material in its possession,
   and  in so far as these complaints fall within the Court's competence,
   it  finds  that  they do not disclose any appearance of a violation of
   the rights and freedoms set out in the Convention or its Protocols. It
   follows  that  the  remainder  of  the application must be rejected as
   being  manifestly  ill-founded, pursuant to Article 35 S:S: 3 and 4 of
   the Convention.

   V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

   107.  Article 41 of the Convention provides:

   "If  the Court finds that there has been a violation of the Convention
   or  the  Protocols  thereto,  and  if  the  internal  law  of the High
   Contracting Party concerned allows only partial reparation to be made,
   the Court shall, if necessary, afford just satisfaction to the injured
   party."

   108.  The  applicant  did  not  submit  a claim for just satisfaction.
   Accordingly,  the  Court  considers that there is no call to award him
   any sum on that account.

   FOR THESE REASONS, THE COURT UNANIMOUSLY

   1.  Declares  the  complaint concerning the applicant's detention from
   27 January 2003 to 18 August 2003, the authorities' silence in respect
   of  the  applicant's  appeal against the detention order of 27 January
   2003  and  his  absence  at  the  hearings before the trial and appeal
   courts admissible and the remainder of the application inadmissible;

   2.  Holds  that  there  has  been a violation of Article 5 S: 1 of the
   Convention  on account of the applicant's detention from 27 January to
   18 February 2003;

   3.  Holds  that  there  has  been a violation of Article 5 S: 1 of the
   Convention on account of the applicant's detention from 18 February to
   18 August 2003;

   4.  Holds  that  there  has  been a violation of Article 5 S: 4 of the
   Convention;

   5.  Holds  that  there  has been a violation of Article 6 S:S: 1 and 3
   (c) of the Convention.

   Done  in English, and notified in writing on 7 February 2012, pursuant
   to Rule 77 S:S: 2 and 3 of the Rules of Court.

   So/ren Nielsen Nina Vajic
    Registrar President

Ссылки

   1. http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=86108192&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=96248&highlight=Proshkin
   2. http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=86108192&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=96248&highlight=Proshkin
   3. http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=86108192&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=96248&highlight=Proshkin
   4. http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=86108192&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=96248&highlight=Proshkin
   5. http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=86108192&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=96248&highlight=Proshkin
   6. http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=86108192&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=96248&highlight=Proshkin
   7. http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=86108192&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=96248&highlight=Proshkin


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