European Court of Human Rights demands Aleksanians immediate release from custody
On Monday 22 December the European Court of Human Rights notified of its chamber judgment calling for the remand in custody of Vasily Aleksanian, former Vice President of YUKOS to be substituted for less harsh measures. It found violations of four articles of the European Convention on Human Rights, including Article 3 (prohibition of inhuman or degrading treatment).
This is a vital ruling also because in the last few days Vasily Aleksanian announced that he was simply unable to raise the exorbitant bail amount which a court for the first time had allowed as a possible preventive measure to replace custody (50 million roubles, close to 2 million dollars).
The Chamber Judgment is given below in full (the name is spelt slightly differently)
CHAMBER JUDGMENT ALEKSANYAN v. RUSSIA
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Aleksanyan v. Russia (application no. 46468/06). (The judgment is available only in English.)
The Court held unanimously that:
· there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of the lack of proper medical assistance in the remand prison;
· there had been a violation of Article 5 § 3 (right to be brought promptly before a judge) of the Convention on account of the failure of the domestic courts to adduce relevant and sufficient reasons to justify his continuous detention;
· there had been a violation of Article 8 (right to respect for private and family life) on account of the searches in the applicants premises;
· the State had failed to meet its obligations under Article 34 (right of individual petition) by not complying promptly with the interim measures indicated by the Court in November and December 2007;
· the applicants detention on remand should be discontinued.
1. Principal facts
The applicant, Vasiliy Georgiyevich Aleksanyan, is a Russian national, born in 1971. He is currently detained in Moscow, and held in Town Hospital no. 60. He is a former practising member of the Moscow Bar. Until 2003 he worked as the head of the legal department of Yukos.
In 2003-2004 criminal proceedings were instituted against several of the companys leading executives on charges of large-scale fraud and embezzlement. At the same time the tax authorities had sued the company, seeking to recover unpaid corporate taxes.
In March 2006 the shareholders of Yukos appointed the applicant as executive vice-president of the company. In the meantime, bankruptcy proceedings against the company started. By a judgment of the Commercial Court of Moscow dated 4 August 2006 Yukos was declared bankrupt. The judgment was upheld on appeal and became final. On 12 November 2007 the bankruptcy proceedings were terminated and the company ceased to exist.
From March 2006 steps were taken to initiate criminal proceedings against the applicant. On 4 and 5 April 2006 his premises were searched by investigators and certain documents were seized. On 6 April 2006 he was arrested and remanded in custody.
The applicants detention has since been repeatedly extended, most recently until January 2009.
Over this period his health has progressively deteriorated. His eyesight, which was poor at the time of his arrest, worsened to the extent that he was effectively blind. In addition in September 2006 he was diagnosed as HIV-positive.
By October 2007 he had developed AIDS and was suffering from a number of opportunistic infections. The applicant underwent numerous medical examinations, but there is some dispute as to when and in what form he was offered treatment. In October 2007 the applicant was transferred from the remand prison where he was detained to the hospital of another remand prison. The doctors concluded that the applicant needed to undergo treatment in a specialist hospital. The investigator in charge of the applicants case sought before the court the applicants release on bail on health grounds. However, the court refused to examine that motion.
On 26 November 2007 the European Court of Human Rights invited the Government of Russian Federation, under Rule 39 of the Rules of Court, to secure immediately, by appropriate means, the in-patient treatment of the applicant in a specialised hospital. On 21 December 2007 the Court confirmed its previous measure and in addition invited the Russian authorities to form a medical commission, to be composed on a bipartisan basis, to diagnose the applicants health problems and suggest treatment.
On 27 December 2007 the Government replied that the applicant could receive adequate medical treatment in the medical facility of the detention centre, and that his examination by a mixed medical commission was against Russian law.
On 31 January 2008 doctors diagnosed the applicant with AIDS-related lymphoma.
On 8 February 2008 the applicant was placed in an external haematological hospital. In the hospital the applicant was guarded round-the-clock by policemen; the windows of his room were covered with an iron grill.
According to the latest information the applicant remains in the external hospital, where he is undergoing medical treatment.
3. Summary of the judgment 2
The applicant alleged, in particular, that, in light of his medical condition, his detention amounted to inhuman and degrading treatment. He also alleged that his detention was unlawful and unjustified and that it was motivated by the political and economical prosecution of his company. He further complained about searches in his home and about the consequences of his detention on his family life. He relied upon Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life), 13 (right to an effective remedy) and 18 (limitation on use of restrictions on rights).
Decision of the Court
It was clear that the applicant had been and remained seriously ill, that he was suffering from advanced AIDS, and that in 2006–2008 he had developed a number of opportunistic infections and lymph cancer.
The applicant did not dispute that while in the remand prison he had received certain forms of basic medical assistance. In particular, he had received, either from his relatives or from the prison pharmacy, commonly used anti-inflammatory and anti-viral drugs and antiseptics.
The central issue was, however, the treatment the applicant had received after he was found to be HIV-positive, including whether he had access to anti-retroviral drugs and whether he should have been transferred to a specialist hospital.
Having regard notably to the fact that the applicant could have obtained anti-retroviral drugs through his family even if they were not available in the prison pharmacy, the Court was prepared to accept that the absence of such drugs in the prison pharmacy was not, as such, contrary to Article 3 of the Convention. As to the failure to provide him with specialised medical assistance, however, the Court concluded that as from the end of October 2007, at the very least, his medical condition required his transfer to a hospital specialised in the treatment of AIDS.
It followed that the national authorities had failed to take sufficient care of the applicants health at least until his transfer to an external hospital. This had undermined his dignity and entailed particularly acute hardship, causing suffering beyond that inevitably associated with a prison sentence and the illnesses he suffered from, which amounted to inhuman and degrading treatment. There had therefore been a violation of Article 3 of the Convention.
The applicant was arrested on 6 April 2006. He has been held in custody ever since, a period of around two years and eight months so far. Such a lengthy pre-trial detention was in itself a matter of concern and very weighty reasons were required to justify it.
With regard to the specific grounds relied on by the Russian authorities, the Court found that the danger of re-offending had not been convincingly demonstrated by the domestic courts at any moment. As regards the applicants presumed potential to interfere with the establishment of the truth, with the passage of time this ground inevitably became less and less relevant. By the end of 2006 the applicants ability to influence witnesses and to destroy documentary evidence, and the risk of collusion, had become essentially non-existent.
As regards the danger of fleeing, the Court observed that with the course of time it became negligible, given the applicants precarious state of health. As to the danger of fleeing abroad, the domestic authorities had not explained why the withdrawal of his Russian travel passport, a measure explicitly envisaged in domestic law for removing flight risks, would not have been sufficient to prevent him from absconding abroad.
Moreover at no stage in the proceedings had the national courts considered the possibility of releasing the applicant on bail, even when the investigator in charge of the applicants case had been in favour of that measure.
Finally, on 6 February 2008 the proceedings in the applicants case had been suspended due to the applicants poor health. In principle, short interruptions of the trial on medical grounds were permissible. However, the applicant had already spent more than 34 months in detention. Some of his illnesses were incurable. Thus, his detention might last indefinitely and the trial might never resume. In the circumstances his detention had lost any meaningful purpose, and its continuation was incompatible with Article 5 of the Convention.
In sum, as from December 2006, the authorities had prolonged the applicants detention on grounds which could not be regarded as “relevant” and “sufficient”, even taking into account their cumulative effect.
There had therefore been a violation of Article 5 § 3 of the Convention.
The Court noted that the search warrants of April 2006 had been formulated in excessively broad terms which effectively gave the prosecution unrestricted discretion in determining which documents were “of interest” for the criminal investigation.
This serious deficiency was in itself sufficient to conclude that the searches of the applicants premises had been conducted in breach of Article 8 of the Convention.
The Court had indicated to the Government two interim measures. As regards the first such measure, it was not until 8 February that the applicant had been transferred to an external hospital. Even assuming that this hospital could be considered a “specialist institution”, it was clear that for over two months the Government had continuously refused to implement the interim measure indicated by the Court, thus putting the applicants health and even life in danger. In the circumstances, the non-implementation of the measure was fully attributable to the authorities reluctance to cooperate with the Court.
In respect of the second measure, the Russian authorities had not permitted the applicants examination by a mixed medical commission including doctors of his choice. Bearing in mind that the applicant was seriously ill, was detained, and was therefore unable to collect all necessary information himself, such a position on the part of the authorities amounted, in the circumstances, to an attempt to hinder the applicant in pursuing his application under Article 34 of the Convention.
In sum, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, the Russian Government had failed to honour its commitments under Article 34 of the Convention.
The applicant further complained under this provision about pressure brought to bear on him and his lawyer in connection with the proceedings in Strasbourg. However, having examined all materials in its possession, the Court concluded that the applicants allegations in this respect had not been made out.
Articles 41 and 46
Having regard to its findings of violations of the Convention, and especially in view of the gravity of the applicants illnesses, the Court considered that the applicants continuous detention was unacceptable. It accordingly concluded that, in order to discharge its legal obligation under Article 46 of the Convention, the Russian Government was under an obligation to replace detention on remand with other, reasonable and less stringent, measure of restraint, or with a combination of such measures, provided by Russian law.