LIND v. RUSSIA

The applicant was a Russian and a Dutch National who was arrested on the suspicion of committing serious offense at the order of the district Court. He had appealed on the order of detention and the order was upheld on appeal on the ground that it was lawful and justified. The applicant was then charged with “an attempted violent overthrow of State power and intentional destruction and degradation of others’ property in public places”. [Para. 14] His detention was extended due to the gravity of his charges, the fact that he had no permanent residence in Moscow and thus he could abscond or interfere with the investigation of his charges. The applicant appealed against the extension of his detention on grounds that he had no criminal records and his state of health was fragile. The city court, however, upheld the order of extension.

At a later date, the court again extended the applicant’s detention upon the request of the prosecutor. Although the applicant’s counsel appealed for a less restrictive measure due to the fact that the applicant had a permanent residence in Russia, had no criminal records and had kidney disease; the city court upheld the detention order as lawful and justified. During its preliminary hearing, the district court rejected the applicant’s and his co-defendants request for release due to the gravity of the charges and the risk of their absconding or interfering in justice. The applicant’s counsel again appealed against the detention order on same grounds as before in addition to the fact that the applicant’s father was dying in Netherlands. The city court upheld the order as lawful, well-reasoned and justified.

After the trial began, requests for the applicant’s release had been made by the applicant himself, his counsel and the Dutch embassy with the submission of medical evidences as to the applicant’s state of health and a guarantee entered for his release by a human-rights activist. The district court rejected the requests on same grounds as before which, in the court’s view, hadn’t changed to warrant release. The court also rejected similar requests by co-defendants.

Although the applicant appealed to the city court stating the district court’s failure to consider medical evidences regarding his and his father’s condition of health, the district court’s decision was upheld on the ground that the applicant had failed to show that his state of health prevented him from remaining in custody. The applicant and the Dutch Ambassador requested the district court for few days release for visiting his father who then had a scheduled date for euthanasia. The court rejected the request stating that the applicant might abscond or interfere with justice as he was a Dutch national but allowed a phone call conversation with his father; the father died the next day.

On appeal, the city court upheld the district court’s decision and held that the applicant’s state of health was satisfactory that there was no need to amend the preventive measures. The applicant and the Dutch Ambassador again asked the court for the applicant’s release to attend his father’s farewell ceremony. The court again rejected the requests for same reasons as before. When the applicant appealed from this decision, healso asserted that medical treatment hadn’t been provided to him and the detention facility’s Doctor failed to answer his applications.  The city court upheld the district court’s decision on grounds that the applicant had rare contact with his father; there was no funeral for his father as he had donated his body to science and the farewell ceremony was to be held in the Netherlands, making it impossible to release the applicant. The applicant was then convicted of participation in mass disorders and sentenced to three years of imprisonment.

The applicant lodged a claim before the European Court of Human Rights (the ECHR) on the ground that the conditions of his detention had been in violation of Article 3 of the European Convention on Human Rights (the Convention) which prohibits torture or inhuman or degrading treatment or punishment against anyone. He also complained that his detention was unlawful and unjustified and that domestic courts had failed to try him within reasonable time and disregarded his defense, in violation of Article 5 of the Convention.

The government stated that the applicant had a separate bunk and had a bed in every cell he was detained, food was provided for prisoners 3 times a day, sanitary conditions were satisfactory, prisoners could walk for an hour a day, the detention facility’s medical unit provided high standard medical service 24 hours a day and the applicant hadn’t applied for medical service.

The applicant complained of the unsanitary conditions, lack of ventilation, lack of privacy when using toilets, the light’s disturbance at night, insufficiency of space for the daily walk, scarcity of food, and very short and infrequent shower that was made available by the prison. He also claimed that he hadn’t been provided with the constant medical treatment and supervision he needed due to his kidney disease; that his request to examination and treatment by the facility’s Doctor hadn’t been answered.

The ECHR noted that the “the applicant was obliged to live, sleep and use the toilet in the same cell with so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and arouse in him the feelings of fear, anguish and inferiority capable of humiliating and debasing him”. [Para. 61] it also noted that the applicant hadn’t been provided with the medical assistance his kidney disease required despite his complaint of pain and request to the authorities. The ECHR held that domestic authorities had subjected the applicant to inhuman and degrading treatment in violation of Article 3 of the Convention.

The ECHR noted that the applicant’s pre-trial detention had lasted for one year. It also noted that domestic courts’ major justification for dismissing the applicant’s requests for release and extend his detention was the gravity of the offense and the risk that he might abscond or interfere with justice. The ECHR thus maintained that the applicant was detained upon the determination of the prosecution’s charges that hadn’t been judicially examined as to the reasonableness of the suspicion that the applicant had committed the alleged offence. Regarding domestic courts’ ground for refusing release, i.e., absence of permanent residence in Russia, the ECHR noted that it couldn’t pose the risk of absconding especially when the applicant had lived and studied there.

The ECHR also noted that domestic courts refused requests for release after trial without having regard to individual circumstances and failed to give reasons for ordering the continued detention of the defendants as a whole. Domestic courts also hadn’t given a justification for concluding that the applicant presented flight hazard while the applicant had had closer ties with Russia. They also failed to consider the use of a more lenient preventive measure to warrant the applicant’s attendance despite the requests for release on bail and surety. Their grounds for prolonging the applicant’s detention hadn’t also been sufficient. The ECHR held that the justification for detention should have been critically demonstrated by the authorities. The ECHR thus found a violation of Article 5(3) of the Convention.

The ECHR held that the applicant’s claim regarding domestic courts’ refusal to allow him a visit to his father’s farewell ceremony (due to his Dutch nationality and the risk of absconding) fell under Article 8 of the Convention which protects the right to respect for private and family life. The ECHR noted that, while the refusal was an interference with the applicant’s right under the provision, the authorities hadn’t applied for an assistance from Dutch even when they had been contacted by its Ambassador. The ECHR noted that the phone call allowed for the applicant had been interrupted for which the government failed to give explanations. The applicant also was obliged to speak in Russian during the one minute call which his father couldn’t understand well.  As this opportunity thus wasn’t sufficient and meaningful, the authorities failed to secure respect for the applicant’s family life in violation of Article 8 of the Convention. The ECHR awarded non-pecuniary damage for the applicant.

“The presumption is in favor of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention”. [Para. 72]

“It is incumbent on the domestic authorities to establish the existence of concrete facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases”. [Para. 73]