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Publication:[not yet received]
Title:Khudobin v. Russia
Application No:59696/00
Respondent:Russia
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment:26-10-2006
Articles:3
5-3
5-4
6-1
41		Conclusion:Violation of article 3
Violation of article 5-3
Violation of article 5-4
Violation of article 6-1
Compensation awarded
Keywords:INHUMAN TREATMENT OR PUNISHMENT / LAWFUL ARREST OR DETENTION / TAKE PROCEEDINGS / PROMPT TRIAL / FAIR TRIAL

Summary:
(Press release)
The applicant is a Russian national who was born in 1979 and lives in Moscow. On 29 October 1998 an undercover police informant called the applicant and asked him to buy her some drugs. Mr Khudobin agreed and bought 0.05 grammes of heroin which he paid for with the money she gave him. On his return to the meeting point where he was to hand over the drug, he was apprehended by police officers. The next day he was charged with drug trafficking and detained on remand. In ordering his detention, the prosecutor of the North-Eastern District of Moscow, referred to the circumstances of the applicant's apprehension, the gravity of charges against him and the risk of his absconding. He was then transferred to Moscow's no. 48/1 pre-trial detention centre. His detention was further prolonged on several occasions. No reasons were given for those decisions. When the applicant was arrested he was suffering from several chronic diseases, including epilepsy, pancreatitis, viral hepatitis B and C, as well as various mental illnesses. He was also HIV-positive. During his detention he contracted several serious diseases including measles, bronchitis and acute pneumonia. He also had several epileptic fits. During one such fit, the applicant submitted that his cell-mates were given a syringe by the paramedic on duty and they administered the medicine. Owing to his ailments the applicant was often placed in a hospital unit for patients with contagious diseases which was part of the detention centre.

On many occasions the defence informed the court, the administration of the detention centre and other State authorities about his serious health problems and requested a thorough medical examination of the applicant. On 22 January 1999 the applicant's father asked for a fresh examination of the applicant by an independent doctor, hired by the defence. His request was refused. On 27 July 1999 the court decided that a new examination of the applicant's mental health was needed. It adjourned the case and decided that in the meantime the applicant should remain in prison. No reasons were given for that decision. The applicant's appeal against that decision was never heard. Another appeal was lodged on 17 August 1999. The first hearing on the merits took place on 11 November 1999 before Butyrskiy District Court. The applicant was not present. The applicant's lawyer asked for an adjournment because several witnesses, including the person who sold heroin to the applicant, as well as the policemen involved in the operation, failed to appear. The court refused his request and found the applicant guilty of selling heroin but released him due to the findings of a psychiatric report which stated that he had committed the crime in a state of insanity. During the trial the applicant's defence argued that, contrary to Russian law, the applicant had been incited to commit an offence by the police informant. In his appeal against the guilty verdict he claimed that the police had fabricated the crime and that the confession had been extracted from the applicant by force. Moscow City Court dismissed the appeal on 11 January 2000.

The applicant alleged, in particular, that he did not receive adequate medical treatment in the remand prison, that the conditions of his detention had been inhuman and degrading, that his pre-trial detention had exceeded a reasonable time, that his applications for release had either been examined with significant delays or not examined, and, finally, that his conviction had been based entirely on evidence obtained as a result of police provocation. He relied on Article 3, Article 5 §§ 3 and 4 and Article 6 § 1.

Article 3
The Court found that the applicant was not given the medical assistance he needed. Even while in the prison hospital, he clearly suffered from the physical effects of his medical conditions. As to his mental state, he must have known that he risked at any moment a medical emergency with very serious results and that no qualified medical assistance was available. Not only was the applicant refused appropriate medical assistance by the detention centre authorities, he was also denied the possibility to receive it from other sources. That must have given rise to considerable anxiety on his part.

The Court further noted that the applicant was HIV-positive and suffered from a serious mental disorder. That increased the risks associated with any illness he suffered during his detention and intensified his fears on that account. In those circumstances the absence of qualified and timely medical assistance, added to the authorities' refusal to allow an independent medical examination of his state of health, created such a strong feeling of insecurity that, combined with his physical suffering, the Court found it amounted to degrading treatment. The Court therefore held unanimously that there had been a violation of Article 3.
In view of that finding the Court did not consider it necessary to examine the applicant's complaint about the general conditions of his detention separately.

Article 5 § 3
The Court noted the reasons given for the initial detention order on 30 October 1998. However, it observed that the courts gave no reasons while extending the applicant's detention or dismissing several applications for release lodged by the defence. The Court recalled that the gravity of the charge could not by itself serve to justify long periods of detention pending trial. Nor could it be used to anticipate a custodial sentence.

On the other hand, the Court observed that the authorities did not take into account in their judicial decisions such important factors as the applicant's young age, his health problems, the absence of a criminal record, the fact that he had a permanent place of residence and stable family relations. It appeared that the lack of reasoning was not an accidental or short-term omission, but rather a customary way of dealing with applications for release. Against that background the Court concluded that the applicant's detention, lasting one year and 23 days, was not justified by "relevant and sufficient" reasons. The Court therefore held unanimously that there had been a violation of Article 5 § 3.

Article 5 § 4
The Court found that the reviews of the applications for release were unduly delayed. It also noted that the courts had failed to examine the applicant's appeal against the ruling of 27 July 1999 authorising his continued detention. In view of those findings the Court held, unanimously, that there had been a violation of Article 5 § 4.

Article 6 § 1
The Court noted that the case contained certain evidence of entrapment and, as such, required appropriate review by the trial court. In particular the applicant's defence maintained that the offence would not have been committed without provocation by the police.

In that respect the Court noted that the applicant did not have a criminal record and that the only allegations of his involvement in drug dealing came from the police informant. Furthermore, he made no financial gain from the deal. It therefore appeared to the Court that the police operation did not target the applicant personally as a well-known drug dealer, but rather any person who would agree to procure heroin for the informant.

The Court also stressed that a clear and foreseeable procedure for authorising investigative measures, as well as their proper supervision, should have been put in place in order to ensure the authorities' good faith and compliance with proper law-enforcement objectives. However, the police operation had been authorised by a simple administrative decision of the body which later carried out the operation, the text of which contained very little information as to the reasons for and purposes of the planned "test buy". Furthermore, the operation was not subjected to judicial review or any other independent supervision. In the absence of a comprehensive system of checks accompanying the operation, the role of the subsequent control by the trial court became crucial.

The Court noted that the policemen involved in the "test buy" were never questioned by the court, although the defence sought to have them heard, nor was the person convicted of selling the drug to the applicant. Finally, the Court was particularly struck by the fact that the applicant himself was not heard by the court on the subject of incitement as he was also absent from the hearing of 11 November 1999.

In sum, the Court found that, although the domestic court had reason to suspect that there was an entrapment, it did not analyse relevant factual and legal elements which would have helped it to distinguish the entrapment from a legitimate form of investigative activity. It followed that the proceedings, which led to the conviction of the applicant, were not "fair" and the Court held, unanimously, there had been a violation of Article 6 § 1.

Article 41
Under Article 41 (just satisfaction), the Court awarded the applicant EUR 12,000 in respect of non-pecuniary damage and 105,000 Russian roubles  (approximately EUR 3,133) for costs and expenses. (The judgment is available only in English.)

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Last Modified: 14-08-2009 17:20:49 (Documentation SIM)