Ñóäåáíîå äåëî "Ïðîøêèí ïðîòèâ Ðîññèè"
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, ×onka 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
Ññûëêè
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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