THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59696/00 
by Viktor Vasilyevich KHUDOBIN 
against Russia

The European Court of Human Rights (Third Section), sitting  
on 3 March 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr L. Caflisch
 Mrs M. Tsatsa-Nikolovska
 Mr A. Kovler
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan, 
 Mr David Thór Björgvinsson, judges
and Mr M. Villiger, Deputy Section Registrar,

Having regard to the above application lodged with the European Court on 29 October 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Viktor Vasilyevich Khudobin, is a Russian national, who was born in 1979 and lives in Moscow. He is represented before the Court by Ms K. Kostromina, a lawyer practising in Moscow. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Circumstances leading to the arrest of the applicant

On 29 October 1998 Ms T., an undercover police agent, called the applicant and said that she wished to buy one dose of heroin. The applicant agreed to procure it and, accompanied by Mr M., met Ms T. in the street. Ms T. handed over to the applicant banknotes, given to her by police officers S. and R. and marked with a special substance (visible only in the ultra-violet light). The applicant took the money and went to the house of another person, Mr G. The latter gave the applicant a sachet, containing 0.05 grams of heroin. On his return to the meeting point with the purported buyer, the applicant was apprehended by the police officers waiting for him in the street.

The applicant was brought to the local police station where his fingers were examined under the ultraviolet light: they borne traces of the substance used by the police to mark the banknotes. Ms T., in the presence of two attesting witnesses, handed the sachet to the police officers explaining that she had received it from the applicant. The sachet was sealed, signed by the attesting witnesses and sent for a forensic examination. The applicant was placed in the detention facility of the police station overnight.

2. The applicant's detention pending investigation and trial

On 30 October 1998 the applicant was charged with drug trafficking and a criminal case was opened. On the same day the prosecutor of the North-Eastern District of Moscow, referring to the circumstances of the applicant's apprehension, the gravity of charges against him and the risk of absconding, ordered his detention on remand. The applicant was transferred to pre-trial detention facility no. 48/1 of Moscow.

In November and December 1999 the defence filed several applications for release with the prosecution authorities, referring to the applicant's bad health, but all these applications were dismissed on account of the gravity of charges against him. On 11 December 1998 the defence filed an application for release with the Preobrazhenskiy District Court.

In the meantime, the pre-trial investigation was completed and on 24 December 1998 the case-file with the bill of indictment was referred to the Moscow Butyrskiy District Court for trial. On 29 December 1998 the application for release pending before the Preobrazhenskiy District Court was forwarded to the Butyrskiy District Court on the ground that the bill of indictment had been transferred to this court and therefore it should deal with all aspects of the applicant's case. The applicant's lawyer appealed against this decision, but on 3 February 1999 the Moscow City Court dismissed the appeal.

On 13 January 1999, at a preparatory hearing, the court ruled that the applicant should remain in custody pending trial, without, however, giving any reasons for this decision.

On 18 February 1999 the applicant's father filed with a court a fresh application for release, claiming that the applicant's very poor state of health was incompatible with the conditions of detention and, in particular, with the level of medical assistance available in the pre-trial detention centre.

On 17 March 1999 the court extended the applicant's detention pending trial.

On 21 April 1999 the applicant's father filed with the district court a new application for release, again referring to the health problems of his son. At the hearing of 27 July 1999 he repeated this request but the court ruled to keep the applicant in custody, giving no reasons for the decision.

On 30 July 1999 the applicant's lawyer appealed against the ruling of the trial court of 27 July 1999, requesting, in particular, to quash the trial court's decision extending the applicant's detention on remand. The appeal was addressed to the Moscow City Court and, as required by the domestic procedural rules, was sent through the registry of the trial court. The registry received the appeal on 4 August 1999. However, it appears that it has never been forwarded to the appellate court for examination. On 17 August 1999 the applicant's legal representatives filed a similar appeal, which was received by the registry on the following day. On 1 September 1999 the applicant's lawyer sent a letter to the trial court where he asked to explain what had happened to his appeal of 30 July 1999. He received no reply to this letter.

On 15 September 1999 the applicant's parents complained to a deputy president of the Moscow City Court and to the Supreme Court of the Russian Federation about the applicant's continued detention. On 17 September 1999 the applicant's representative requested the trial court to release the applicant. The materials of the case-file do not contain any reply to these appeals.

The applicant remained in detention until 11 November 1999, when the court discontinued the criminal proceedings (see below) and released him.

3. The applicant's health problems while in detention

Since 1995-1997 the applicant has suffered from many chronic diseases, such as epilepsy, pancreatitis, viral hepatitis B and C, as well as various mental deficiencies. The doctors who examined the applicant in 1995 recommended out-patient psychiatric supervision and treatment by anticonvulsants. It appears that by the moment of his arrest in October 1998 the applicant had a certain history of drug use, including taking heroin intravenously.

In December 1997 the applicant passed a blood test which showed that at this time the applicant was HIV1–negative. The applicant also produced the results of a blood test he passed in June 1998, and an extract from his medical record, dated 23 October 1998. Both documents do not mention that the applicant was HIV-infected at the respective time (although it appears that these tests were not specifically aimed at detecting HIV).

Immediately after his transfer to the detention centre on 30 October 1998 the applicant was subjected to a comprehensive medical examination, including an HIV blood test, drug test and psychiatric examination. The drug test revealed that the applicant was intoxicated with morphine. The psychiatric commission confirmed previous diagnoses but found him legally capable of being held accountable for the alleged offences. On 10 November 1998 the first results of the applicant's blood test were received. According to the report by the forensic laboratory, the applicant was HIV-positive. On 23 November 1998 the results of the second test confirmed the conclusions of the first one. The applicant was classified as having been at a primary stage of this disease.

On 30 November 1998 a psychiatrist re-examined the applicant and recognised him as capable of being held accountable. On an unspecified date in December 1998 the administration of the detention facility received the applicant's medical record relating to the period prior to his arrest, where necessary treatment was indicated. In particular, the applicant was prescribed anticonvulsants (финлепсин, конвулекс) and anti-hepatitis cure (рибоксин, парсил).

On 23 December 1998 the applicant underwent a new medical examination, which confirmed the diagnoses established earlier and stated that the applicant “was able to participate in the trial and take part in investigative actions”.

While in detention, the applicant suffered from pneumonia, epileptic seizures, bronchitis, hepatitis, pancreatitis, and other serious diseases. Owing to his ailments the applicant was on many occasions placed in the unit for contagious patients of the facility hospital. As the detention facility administration reported, the applicant was in the facility hospital between 24 December 1998 and 22 March 1999, 20 April 1999 and 18 May 1999, 19 July 1999 and 12 August 1999, 17 September and 28 September 1999.

On many occasions the defence informed the court, the administration of the detention centre, and other State authorities about serious health problems of the applicant. Thus, on 18 January 1999 the defence requested a thorough medical examination for the applicant. On 22 January 1999 the applicant's father asked the facility administration to schedule a fresh examination of the applicant by an independent doctor, hired by the defence. However, the facility administration refused this request.  
On 29 January 1999 the facility doctor issued a medical certificate where he stated, inter alia, that the applicant's state of health was “satisfactory”. On 25 February 1999 the facility doctor confirmed that the applicant's state of health was “satisfactory” and did not prevent him from participating in the proceedings.

On 26 April 1999 the applicant had two consecutive epileptic seizures. As follows from a written statement signed by his cell-mates, they had to unclench the applicant's teeth with a wooden spoon to prevent him from suffocating. Then the paramedic at duty arrived and gave the applicant's cell-mates a syringe with an unknown substance which they injected into the applicant's buttocks. The applicant's father complained about this fact to the facility administration, which replied that the applicant had received medical aid “in the room for medical procedures”.

In May 1999 the applicant came through measles and pneumonia. On 26 June 1999 the applicant had another epileptic seizure. He was transferred to the psychiatric facility of the detention centre where he was for a certain period of time under out-patient supervision and received anticonvulsants. The applicant's father, in his letter of 2 August 1999 to the Ombudsman, indicated that on 6 July 1999 the applicant had had another epileptic seizure but had received no medical assistance.

On 15 June 1999 the doctors concluded that the applicant had been legally insane when committing the incriminated acts. The report stated, inter alia, that the applicant “suffered from chronic mental disease in the form of epilepsy with polymorphous seizures and mental equivalents and with evident mind modifications with a tendency to drug use”.

On 15 July 1999 the applicant fell ill with bronchopneumonia. According to the applicant's father, facility doctors began treatment only ten days after the symptoms had appeared. On 17 July 1999 the applicant was administered a blood test in the facility hospital against his will. His father complained of it to the facility administration which explained, in the letter of 16 August 1999, that the blood sample had been taken using a disposable needle.

On 21 July 1999 the applicant's father complained to the Ministry of Justice about bad conditions of detention and lack of appropriate medical treatment of his son. On 27 July 1999 he filed a similar complaint to the Butyrskiy District Court seeking the applicant's release. According to the applicant's father, the applicant, his fever (40 C˚) notwithstanding, was repeatedly transferred from one cell to another and did not receive adequate treatment of pneumonia. He spent three days in a cell with suppurative patients and slept on the floor owing to the shortage of sleeping places. The facility doctors did not establish the applicant's immunological and biochemical status, as well as possible causes of his persistent fever. The applicant's father wanted to hand him a poly-vitamin medicine, but the facility administration refused to take it.

The court dismissed the request. On the same day, upon the prosecutor's request, the court appointed a new expert examination of the applicant's mental health on the basis that the previous one, recognising the applicant as being legally insane, did not specify whether the applicant's state of mental health required compulsory medical treatment.

In August 1999 the applicant's mother complained to the Ministry of Justice about the conditions of detention of the applicant, and, specifically, about the lack of adequate medical assistance.

The third expert report of 19 October 1999 confirmed the findings of the second report of 15 June 1999 recognising the applicant legally insane and recommended compulsory treatment.

On an unspecified date the applicant's representative applied to the prosecutor's office seeking to initiate criminal investigation in respect of the applicant's allegations that he had been infected with HIV in the detention centre. On 23 April 2004 a deputy city prosecutor of Moscow found these allegations unfounded and refused to open the investigation.

4. Examination of the applicant's case on the merits

On 30 December 1998 the Butyrskiy District Court received the case-file from the prosecutor. The first preparatory hearing took place on 13 January 1999. In the following months the trial held several hearings where various procedural matters were decided. Thus, on 17 March 1999 the court appointed a fresh expert examination of the applicant's mental health and adjourned the case. The expert report was ready by 15 June 1999; it concluded that the applicant was insane but did not contain any recommendations as to possible compulsory medical treatment of the applicant. On 27 July 1999 the court commissioned another psychiatric examination of the applicant and, again, adjourned the examination of the case.

The first hearing on the merits took place on 11 November 1999 in the presence of the applicant's lawyer. The applicant was not present at the hearing. Upon the lawyer's request, the court admitted several people to participate in the proceedings in the capacity of the applicant's “public defenders”. They were given 30 minutes to read the case-file. The applicant's lawyer asked for an adjournment because several witnesses, including G., who had sold heroin to the applicant, failed to appear. However, the court decided to proceed.

The arguments of the defence before the trial court can be summarised as follows. The defence contended that applicant had been incited to commit an offence by Ms T., acting on behalf of the police. According to the defence, Russian law prohibits any form of incitement or provocation; only if a specific crime was being prepared, an undercover operation could be carried out. However, in the present case the police, in planning the “test buy”, had no proof of the applicant's involvement in the drug trafficking.

They further stressed that the applicant's confession had been given in the state of drug intoxication and without legal advice. Finally, the defence challenged the credibility of the forensic examination report, which had identified the substance confiscated and allegedly sold by the applicant to Ms T. as heroin. They referred to a declaration signed by the applicant on 15 October 1999 where he stated that the confession had been extracted from him by force.

At the hearing on 11 November 1999 Ms T., the agent provocateur, gave evidence against the applicant. She testified that she had agreed to help the police voluntarily. She explained that she had handed the applicant over to the police “out of kindness” [sic]. She also stated as follows: “At this moment I did not know where to get heroin, so I called [the applicant] because in the past he had already procured it for me”. The court also heard Mr M., who was with the applicant at the moment of his arrest and who confirmed, in principle, Ms T.'s account of facts.

On the same day the Butyrskiy District Court found the applicant guilty of selling heroin to Ms T. on 28 October 1998. At the same time the court, referring to the psychiatric report of 15 June 1999, ruled that the applicant had committed the impugned crime in a state of insanity, and therefore could not be held criminally accountable for his act. The court discontinued the criminal proceedings and ordered compulsory medical treatment of the applicant at his home. The applicant was released from custody.

The applicant's representative appealed, claiming that the applicant was not guilty and maintaining, inter alia, that the police had in fact fabricated the crime. In particular, there was no reliable evidence that the applicant had been already suspected by the police to be a drug-dealer at the moment of his arrest. Moreover, the applicant had not derived any financial benefit from the transaction as he had given the money that he had received from T. for the sachet, to Mr G. Furthermore, the court did not interview several key witnesses, including two police officers who had arrested the applicant, two eye-witnesses of his arrest and Mr G., who had sold the substance to the applicant. Finally, the applicant's representatives mentioned that the confession was extracted from the applicant by force.

On 11 January 2000 the Moscow City Court dismissed the appeal. The second instance hearing took place in the applicant's absence, but in the presence of his lawyer and representatives.

On 12 April 2004 the Butyrskiy District Court of Moscow, upon the motion of the psychoneurotic hospital no. 19 of Moscow ruled to discontinue the compulsory medical treatment of the applicant imposed by the same court's decision of 11 November 1999.

B.  Relevant domestic law

1. Criminal liability

Article 228 § 1 of the Criminal Code punishes the offence of unlawful procurement of drugs without an intent to supply. Article 228 § 4 punishes unlawful supply of drugs in large quantities.

Article 6 of the Operational-Search Activities Act (of 5 July 1995) lists a number of intrusive techniques which may be used by law enforcement or security authorities for the purpose of investigating crimes. Under Article 6 § 1 (4) of the Act, the police can carry out a “test buy” of prohibited goods (i.e. drugs). Article 228 § 4 of the Criminal Code punishes unlawful supply of drugs in large quantities.

Pursuant to Article 21 (“Insanity”) of the Criminal Code a person who was insane at the time of the commission of a socially dangerous act as a result of chronic or temporary mental derangement, mental deficiency or any other mental condition shall not be subject to criminal liability. In this case the court, by an interim decision (определение), discontinues the proceedings, discharges the defendant from criminal liability or the penalty and may impose on the defendant compulsory medical treatment (Article 410 of the Code of Criminal Procedure). However, if the court finds that there is no sufficient indication of the defendant's guilt, the proceedings should be discontinued on this ground. The court in this case may still apply the compulsory medical treatment to the applicant.

2. Detention on remand

For relevant provisions of the Code of Criminal Procedure concerning the pre-trial detention see Smirnova v. Russia (nos. 46133/99 and 48183/99, 24 October 2003, § 46).

COMPLAINTS

The applicant complains under Article 2 of the Convention that he contracted HIV in the pre-trial detention centre.

The applicant complains under Article 3 of the Convention that on the day of his arrest he was subjected to ill-treatment at the local police station. The applicant alleged that after his apprehension he had been questioned for more than 24 hours without a break for sleep. During that time he was forced to stand up in a so-called “racketeer's pose”, his feet wide apart and his hands against the wall.

The applicant also complains under Article 3 of the Convention that, although he suffered from a number of serious diseases he did not receive adequate medical treatment in the pre-trial detention facility. Thus, in particular, the facility authorities refused his father's requests to carry out an independent examination of his health. The applicant was left without qualified medical aid during his epileptic seizures, some of which were not even recorded in his medical history. Despite his fever and counter-indications he was transferred from one cell to another, and, at least on one occasion, slept on the floor because of the lack of sleeping places in the facility hospital. On 17 July 1999 the facility paramedics took a blood sample from him by force. He further claims that he was interned to a cell with contagious patients, whereas HIV-infected people are very vulnerable and should not be exposed to the risk of contamination.

The applicant complains under Article 5 of the Convention that his  
pre-trial detention was unlawful and excessively long. He complains about the delays in the examination of his applications for release.

The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were not fair, because he was arrested, tried and convicted as a result of a police provocation. He also indicates that his trial was unreasonably long and that his “public defenders” did not have enough time to read the case-file (Article 6 § 3 (b)).

THE LAW

I. ARTICLE 2 OF THE CONVENTION

The applicant complains that he contracted HIV in the pre-trial detention facility. He refers in this respect to Article 2 of the Convention which, insofar as relevant, reads as follows:

“1.  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally ...”

The Government exclude the possibility of the applicant's contamination during his pre-trial detention. According to them, the infection appears to have occurred some time before his arrest in October 1998. They explain that the applicant was taking heroin intravenously, which is a major cause of HIV-infection in Russia. They also emphasise that the first blood sample, taken by the facility doctors on the next day after the applicant's arrest, showed HIV-positive results. They indicate finally that for the last fifteen years all blood tests in facilities were made only with either disposable syringes or disposable syringe needles.

The applicant maintains his allegations.

In the Court's view, it is questionable whether Article 2 of the Convention is applicable to the circumstances of the present case (see in this respect, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, § 36). However, it is not necessary to determine this issue because the complaint is, in any event, inadmissible for the following reason.

The Court recalls that, in assessing evidence, it adopts the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). In the present case the applicant produced a report confirming that in 1997 he was HIV-negative. All subsequent blood tests he passed were of a general nature and were not specifically tailored to detect HIV. The first blood sample which was taken from the applicant on the next day after his arrest, showed traces of the HIV infection. Therefore, it cannot be concluded, beyond reasonable doubt, that the applicant was HIV-free before his apprehension.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II. ARTICLE 3 OF THE CONVENTION

A. Alleged ill-treatment of the applicant on the day of his arrest

The applicant further complains that on 29-30 October 1998 he was ill-treated in the police station. He refers to Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court notes that the applicant produced no medical or other evidence of ill-treatment, nor did he try to bring this allegation to the attention of the authorities immediately after the events complained of. The applicant raised this complaint for the first time almost a year after the alleged ill-treatment.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Allegedly inhuman and degrading conditions of detention and lack of medical treatment in the detention facility

Under Article 3 of the Convention, cited above, the applicant also complains about the lack of medical assistance in the pre-trial detention facility and inhuman conditions of detention.

The Government insist that, while in detention, the applicant received all necessary treatment. Every complaint of his representatives was thoroughly examined and reasoned answers were given in a timely manner. In the Government's view, this complaint is unsubstantiated.

The applicant maintains his complaint. In his submissions, the authorities were perfectly aware of his diseases. The applicant's father on many occasions inquired about the health of his son. However, all replies he received from the facility administration were of a very general character and contained no detailed information about the treatment the applicant received for his ailments. The applicant specifically points to the episode of 26 April 1999 when he had an epileptic seizure but no qualified medical assistance was available to him (see above).

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

III. ARTICLE 5 OF THE CONVENTION

The applicant complained, referring to Article 5 of the Convention, that his detention had not been lawful or necessary. He complained about the domestic courts' failure to examine “speedily” his applications for release. Article 5 of the Convention reads, insofar as relevant, 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;

...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  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

The Government argue that the applicant's continued detention was lawful and necessary because of his personality and the gravity of the charges against him: the applicant was charged with serious crimes carrying the punishment of more than thirteen years' imprisonment. They indicate that the first detention order, imposed by the prosecution authorities on the applicant on 30 October 1998, referred to the danger of absconding, and that all subsequent detention orders implicitly were based on this ground as well. They maintain that the applicant's state of health was not so bad as to outweigh considerations of public interest calling for continuation of his detention on remand. The Government finally contend that the ruling  
of 27 July 1999 in the part concerning the applicant's detention “was not examined in the court of cassation since the applicant had not appealed against this part of the decision”.

The applicant maintains his arguments. He replies that his continued detention was not lawful or necessary as there was no danger of absconding, re-offending, or interfering with the course of justice. He suffered from many diseases, had a permanent place of residence and occupation. Furthermore, the courts did not give any reasons why they considered that such danger existed. There was no serious evidence of guilt as the accusations were based on the police provocation, there was no risk of re-offending, and the applicant's precarious health called for his immediate release. The applicant insists that the ruling of 27 July 1999, extending his detention, was challenged to the appeal court by his lawyer and his legal representatives.

B. The Court's assessment

1. Lawfulness of the applicant's detention (Article 5 § 1 (c))

(a)  The Court observes that on 29 October 1998 the applicant was arrested and detained overnight on the basis of a police order. From 30 October 1998, after having been charged, he was detained on the basis of a detention order issued by the prosecutor's office. In the following months the applicant's detention on remand was extended by the trial court's decisions of 13 January, 17 March, and 27 July 1999. The Court recalls that the Russian law then in force provided that detention orders, imposed or confirmed by the first instance court, can be further challenged before the court of appeal. However, in the present case the applicant has never appealed against any detention order imposed on him before 27 July 1999.

It follows that, insofar the applicant complained about the unlawfulness of his detention prior to 27 July 1999, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(b)  As regards the period between 27 July 1999, when the district court extended his detention order and 11 November 1999 the day of the applicant's release, the Court notes that the Government did not deny that the detention order of 27 July 1999 was challenged before the appeal court at least twice: on 30 July 1999 (by the applicant's lawyer) and on 17 August 1999 (by his legal representatives - father and mother). For some reason these two appeals remained without examination by the appeal court until the applicant applicant's release in November 1999. However, it was certainly not the applicant's fault. Therefore, the applicant's complaint about this period cannot be rejected for non-exhaustion.

Turning to the substance of the complaint, the Court notes that the applicant's pre-trial detention during this last period was based on a valid court order and justified by a reasonable suspicion that he had committed the offence. The fact that the applicant was charged as a result of a police provocation does not affect this conclusion: in domestic terms the imputed act was nevertheless a criminal offence. It is not disputed that the applicant was detained in order to secure the proper course of the proceedings, and, therefore, his detention served the legitimate aim indicated in Article 5 § 1 (c) of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Right to be released or tried within a reasonable time (Article 5 § 3 )

The Court will next consider whether the authorities have adduced relevant and sufficient reasons to justify the length of the applicant's detention on remand. It recalls that only the last detention order, imposed on 27 July 1999, was duly challenged by the applicant (see the Court's above findings under Article 5 § 1 (c) of the Convention). However, in order to assess whether the duration of the period after 27 July 1999 was reasonable, the Court is able to take account of the whole period of the applicant's detention.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. Speedy review of the applicant's requests for release (Article 5 § 4)

The applicant complains that his rights under Article 5 § 4 of the Convention were not respected in the proceedings on his many requests for release, in that these requests were not decided upon speedily.

(a)  The Court recalls that the application was introduced on 29 October 1999. It further notes that, for the purposes of Article 5 § 4 of the Convention, it can deal with this complaint only insofar as it concerns the proceedings that took place after 29 April 1999. As regards all earlier proceedings, the application was lodged more than six months after the final decisions in those proceedings had been made or after the events complained of had occurred (cf. Ilijkov v. Bulgaria, no. 33977/96, Commission decision of 20 October 1997), and this part of the complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b)  Insofar as the applicant's complaint under Article 5 § 4 concerns his applications for release before the Butyrskiy District Court of 21 April 1999 (examined on 27 July 1999) and 17 September 1999 (examined on 11 November 1999), as well as the appeals before the Moscow City Court lodged on 4 and 17 August 1999 (which has never been examined in appeal), the Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

IV. ARTICLE 6 OF THE CONVENTION

The applicant complained about unfairness and length of criminal proceedings against him. In particular, he alleged that he had been incited by police officers acting through T. as their agent to commit the offences of procurement and supply of drugs. He also indicated that some of his counsels had not been given enough time to read the case-file. He invoked Article 6 of the Convention, which, insofar as relevant, reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time.

...

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

...

(b)  to have adequate time and facilities for the preparation of his defence ...”

A.  Submissions by the parties

As regards the first issue raised by the applicant under Article 6 of the Convention, the Government argue that the applicant's rights were not violated. The Government emphasise that in the present case the trial court discharged the applicant from a criminal penalty, imposing on him compulsory medical treatment. Next, the Government indicate that a “test buy” (or, in the domestic terms, an “operative experiment”, оперативный эксперимент) is an appropriate method of fighting the crime; the evidence obtained in such “experiments” is admissible under the Russian law and can lead to a conviction of the offender. They state also that “the question as to what particular information of [the applicant's] illegal actions with narcotic drugs was at the disposal [of the police before conducting the test buy], is not a subject of proof in the present criminal case”.

The applicant maintains his complaints. Referring to the court decision of 11 November 1999, he argues that his conviction was based solely on the evidence obtained by the “test buy”. He indicates that the domestic law permits to conduct “experiments” only with a view to confirming the already existing suspicions that a person is involved in criminal activities. However, the police operation in question was planned and carried out, without the police's having any incriminating information about the applicant; on the contrary, he had had no criminal record and no preliminary investigation had been opened. The applicant contends that the facts of the present case correlate with the facts of the Teixeira de Castro case (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV), where the Court found a violation of Article 6 § 1 of the Convention.

B. The Court's assessment

1. The Government's objection as to the victim status of the applicant

The Court notes at the outset that the applicant was not convicted stricto sensu: the trial court discontinued proceedings against him and subjected him to compulsory medical treatment. The Court considers that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see X v. the United Kingdom, no. 8083/77, Commission decision of 13 March 1980, Decisions and Reports 19, p. 223, and Eğinlioğlu v. Turkey, no. 31312/96, Commission decision of 21 October 1998). In order for an applicant to be able to claim to be a victim of a violation of the Convention, they must be able to show that they have been directly affected by the impugned measure. In the previous cases the Court acknowledged that an acquitted defendant could no longer claim to be a victim of alleged violations of the Convention during the proceedings  
(see X. v. the United Kingdom, no. 8083/77, Commission decision of 13 March 1980, DR 19, p. 223). It accepted that the same reasoning could be applied where an accused was granted an amnesty. This conclusion, however, can only be drawn where the applicant is no longer affected at all, having been relieved of any effects to his disadvantage (see Correia de Matos v. Portugal (dec.), no. 48188/99, 15 November 2001, ECHR 2001-XII). The Court emphasises that in the present case the applicant was subjected to a criminal investigation and, pursuant to the court's decision, to a compulsory medical treatment, a measure provided for by the Russian Criminal Code. In any event, the trial court's decision of 11 November 1999, by which the proceedings were discontinued, contained a declaration of the applicant's guilt. Therefore, the fact of “discontinuation” of the criminal proceedings against the applicant or the discontinuation of the compulsory medical treatment imposed by the court did not, in the circumstances of the case, deprive him of his status as a victim (see, mutatis mutandis, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). The Government objection under this head must therefore be dismissed.

2. Conviction based on a police incitement

Insofar as the applicant complains about the use of evidence, obtained as a result of incitement by the police to commit a crime, the Court recalls that the question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained and used, were fair.

The Court considers, in the light of the parties' submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. Length of criminal proceedings

The applicant complained about the length of criminal proceedings against him. The Court observes that the period, falling under Article 6 § 1 amounts to one year, two months and twelve days. Within this period the Court detects no significant periods of inactivity, attributable to the judicial or prosecution authorities: during this period the police investigation was completed, at least six hearings were held and two decisions – on the merits and in appeal – were rendered by the domestic courts. In the Court's opinion, the overall length of criminal proceedings in the present case does not raise an issue under Article 6 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. Preparation of the defence

The applicant indicates that at the final hearing on the merits (on 11 November 1999) the first instance court granted leave to his “public defenders” to participate in the proceedings. However, they were given only half an hour to read the case-file, which was not, in the applicant's submission, “an adequate time ... for the preparation of his defence” within the meaning of Article 6 § 3 (b) of the Convention.

The Court recalls that when determining whether Article 6 of the Convention has been complied with, it must take into account the proceedings as a whole. It observes further that, in addition to “public defenders”, the applicant was represented by a professional lawyer and legal representatives, his father and mother. Throughout the trial they had unrestricted access to the case-file and could copy the materials. Therefore, it cannot be said that the applicant's right to prepare his defence was violated.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints:

i. about the lack of adequate medical treatment and conditions of his detention in the remand facility;

ii. about the length of his pre-trial detention;

iii. about belated examination of his applications for release lodged in April and September 1999 with the Butyrskiy District Court, as well as the applicant's complaint that his appeal against the detention order imposed by the court on 27 July 1999 has never been examined;

iv. that his conviction was fully based on evidence obtained as a result of police incitement;

Declares inadmissible the remainder of the application.

Mark Villiger Boštjan M. Zupančič  
 Deputy Registrar President

1 Human immunodeficiency virus


KHUDOBIN v. RUSSIE DECISION


KHUDOBIN v. RUSSIE DECISION