I correctly predicted that there was a violation of human rights in LUTSKEVICH v. RUSSIA.
Information
- Judgment date: 2014-10-09
- Communication date: 2013-12-19
- Application number(s): 6312/13
- Country: RUS
- Relevant ECHR article(s): 3, 5, 5-3, 10, 10-1, 11, 11-1
- Conclusion:
Remainder inadmissible
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Pecuniary damage - claim dismissed
Non-pecuniary damage - award - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.886796
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
A list of the applicants is set out in the appendix.
The applicants were detained on suspicion of having played an active role in the mass disorders that allegedly took place at a political rally held on 6 May 2012 at Bolotnaya Square in Moscow.
They were arrested on different dates between 8 June 2012 and 6 February 2013.
Their submissions on the circumstances in which a demonstration took place and was dispersed by the authorities are set out in Section A below.
The facts relating to the individual applicants’ arrest and detention, and their complaints, are set out in Section B.
A.
Background facts On 23 April 2012 five individuals, none of whom are applicants in the present case, submitted a notice of a public demonstration to the mayor of Moscow stating the date, time and route of the intended march.
It was to begin at 4 p.m. on 6 May 2012, with an estimated number of about 5,000 participants, who would march from Kaluzhskaya Square down Bolshaya Yakimanka Street and Bolshaya Polyanka Street, followed by a meeting at Bolotnaya Square.
The meeting was to end at 7.30 p.m.
The notice stated that the proposed demonstration was intended “to express protest against abuses and falsifications in the course of the elections to the State Duma and of the President of the Russian Federation, and to express a demand for fair elections, respect for human rights, the rule law and the international obligations of the Russian Federation”.
On 4 May 2012 the deputy mayor of Moscow charged the Tsentralnyy district prefect with assisting the organisers of the demonstration in maintaining public order and security during the event.
On 5 May 2012 a plan of the intended demonstration was officially published, which included a map of the area designated for the march and the meeting.
The centre of Bolotnaya Square was indicated on it as the place of the meeting.
On 6 May 2012 all of Bolotnaya Square, except a narrow strip along its embankment, was barred with metal barriers and cordoned off by the riot police.
The strip was left to serve as a corridor leading to the entrance to the meeting venue, and it was equipped with 15 metal detectors.
The march began as planned at 4 p.m.
The turnout exceeded the expectations, but there is no consensus as to the exact numbers.
The organisers of the demonstration considered that about 25,000 people took part in the event.
The police stated the number of participants was 8,000, and the estimates given in different media varied between 45,000 and 120,000 people.
The march down Yakimanka Street and Bolshaya Polyanka Street went peacefully without any disruption.
However, when the marchers arrived at the corridor, which was substantially narrower than the streets by which they had arrived, a stampede and panic occurred.
Apparently some protestors attempted to break through the police cordon, but they were forced back to the restricted area and clashes between them and the police began.
The police allegedly used truncheons, electric shock and teargas against the protestors.
According to the official sources 436 protestors were arrested at the site of the demonstration, but the organisers considered their number underestimated and claimed that there had been about 650 persons taken into custody.
On the same day the Investigative Committee of the Russian Federation opened criminal proceedings to investigate the suspected mass disorders and violent acts against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code).
On 28 May 2012 the investigation was also launched into the criminal offence of organising mass disorders (Article 212 § 1 of the Criminal Code).
The two criminal cases were joined on the same day.
On 22 June 2012 the Investigative Committee set up an investigation group of 27 investigators and put them in charge of the criminal file concerning the events of 6 May 2012.
On unidentified date two human rights activists filed a request with the Investigative Committee to open criminal investigation into the conduct of the police in the above events, in particular their alleged suppression of the lawful public demonstration.
There is no information about the follow-up to this request.
Another petition was filed, also on unidentified date, by 44 human rights activists and members of NGOs, calling for curbing repression against the protestors arrested and prosecuted in relation to the events of 6 May 2012 and denying that mass riots had taken place during the demonstration.
B.
The applicants’ individual cases 1.
The application of Mr Lutskevich (no.
6312/13) (a) The applicant’s arrest and pre-trial detention At the time of his arrest the applicant was a first-year student of the Moscow Humanities University, the faculty of culture studies.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the peaceful demonstration and that he did not intend to take part in any disorder or clashes with the police.
However, he claims that he was beaten up by the police as they were dispersing the demonstration.
On 7 May 2012 at 4 a.m. the applicant was admitted to the emergency ward of the hospital and was examined by a traumatology doctor.
He was diagnosed with the multiple hematomas on the chest, the spine, shoulders, knees and head and multiple abrasions.
On unidentified date the Investigative Committee of the Russian Federation opened criminal investigation into the applicant’s beatings.
The file was referred to the Moscow branch of the Investigative Committee.
The applicant has not heard about it since.
Until 9 June 2013 the applicant continued to study at the university while living at his usual address.
On the latter date the applicant was detained on remand on charges of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012.
On the same date the Basmannyy District Court of Moscow examined the request to detain the applicant pending criminal investigation.
It found that that there had been sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to influence witnesses, to destroy evidence, or to otherwise obstruct the course of justice.
It noted that the applicant’s father was a Ukrainian national living in Ukraine and the applicant therefore had a possibility to flee.
It dismissed the applicant’s request for an alternative measure of restraint, including a house arrest.
On 18 June 2012 charges were brought against the applicant for having participated in mass disorders, aggravated by violence, and for having committed an act of violence against an official.
In particular, he was accused of having torn a protection helmet off a police officer’s head.
On 11 July 2012 the Moscow City Court upheld the detention order of 9 June 2012.
On 7 August 2012 the Basmannyy District Court of Moscow examined the investigator’s request to extend the term of the applicant’s detention by two months and 28 days.
The applicant requested to select another measure of restraint pending trial, such as house arrest, or a recognisance not to leave Moscow, or a bail of RUB 500,000, or personal guarantees.
On the same day the court found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 November 2012.
On 5 September 2012 the Moscow City Court upheld the extension order of 7 August 2012.
On 2 November 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 21 November 2012 the charges against the applicant were modified to specify the circumstances of the dispersal of the demonstration on 6 May 2012 and to include an accusation that the applicant had thrown three chunks of tarmac in the direction of the policemen and that he had hit a policeman with his hand at least once.
On 27 February 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 9 June 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for determination of criminal charges.
On 6 June 2013 the latter court granted another extension of the applicant’s detention, until 24 November 2013.
This decision concerned all 12 defendants in the case.
Having rejected the applicant’s request for another measure of restraint, the court held that no other measure could secure the course of justice in this case.
On 2 July 2013 the Moscow City Court upheld this extension order.
On 6 August 2013 the Zamoskvoretskiy District Court of Moscow refused to examine the applicant’s request for a review of his continued detention.
On 23 August 2013 the same court refused to consider an appeal against the decision of 6 August 2013.
(b) Conditions in the detention facility, in the courtroom and during transfer The applicant was detained in the detention facility IZ-77/5 in Moscow.
He claims that he was detained in different cells and that in all of them the conditions had been poor.
The applicant alleges that during the trial he and other 11 defendants are crumped in a small room separated by a plastic partition from the rest of the courtroom.
The room lacks space, ventilation and is virtually soundproof, effectively preventing him from participating in the proceedings.
The bench has no backrest.
The lack of space makes it impossible to have documents or to consult one’s counsel during the hearing.
According to the applicant, the convoy room (the “box”) where he waits before and after the hearing is too small, poorly equipped, lacks ventilation and light.
The applicant cannot use his glasses in the convoy room.
During the personal search conducted in the convoy room the applicant is required to strip naked and to perform sit-ups.
The applicant also alleges that he is transported between the detention facility and the courtroom in the overcrowded vans with lacking ventilation.
The transfer takes about three hours in the morning and up to five hours in the evening, which deprives him of sleep and hot meals.
There is no possibility to use toilet during the transfer.
2.
The application of Mr Gushchin (no.
53390/13) At the time of his arrest the applicant was a student and was working part-time.
On 6 May 2012 he took part in the demonstration arrived at Bolotnaya Square.
On 6 February 2013 his flat was searched and his travel passport was seized.
The applicant was arrested on charges of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012.
On 7 February 2013 the Basmannyy District Court of Moscow examined the request to detain the applicant pending criminal investigation.
It found that that there had been sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to influence witnesses, to destroy evidence, or to otherwise obstruct the course of justice.
To support this view the court relied on undisclosed operative information from the operative-search bodies.
It also indicated that the applicant had a travel passport and therefore could flee.
It authorised the applicant’s detention until 6 April 2013.
On 27 February 2013 the Moscow City Court upheld the detention order of 7 February 2013.
On 1 April 2013 the Basmannyy District Court examined a request for an extension of the applicant’s pre-trial detention.
It noted that the applicant had been previously charged of an administrative offence and considered that in these circumstances he was likely to obstruct the course of justice.
It found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 August 2013.
On 24 April 2013 the Moscow City Court upheld the detention order of 1 April 2013.
3.
The application of Mr Polikhovich (no.
62630/13) (a) The applicant’s arrest and pre-trial detention At the time of his arrest the applicant was a second-year student of the Moscow University of Social Studies, the faculty of conflict studies.
He was also working part-time as a courier for an insurance company.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the peaceful demonstration and that he did not intend to take part in any disorder or clashes with the police.
Until 26 July 2012 the applicant continued to study at the university while living at his usual address.
On the latter date the applicant was detained on remand on charges of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012.
On 27 July 2012 the Basmannyy District Court of Moscow examined the request to detain the applicant pending criminal investigation.
It found that that there had been sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to influence witnesses, to destroy evidence, or to otherwise obstruct the course of justice.
It indicated in particular that according to the police the applicant was an active member of “organisations of destructive character”.
It dismissed the applicant’s request for an alternative measure of restraint, including a 500,000 Russian roubles (RUB) bail, a personal guarantee and a recognisance not to leave Moscow.
On 1 August 2012 charges were brought against the applicant for having participated in mass disorders, aggravated by violence, and for having committed an act of violence against an official.
In particular, he was accused of having pushed away the police officers who were arresting other protestors.
On 27 August 2012 the Moscow City Court upheld the detention order of 27 July 2012.
On 24 September 2012 the Basmannyy District Court examined a request for an extension of the applicant’s pre-trial detention.
The applicant requested to select another measure of restraint pending trial, such as house arrest, or a recognisance not to leave Moscow, or a bail of RUB 500,000, or personal guarantees.
On the same day the court found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 November 2012.
On 29 October 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 15 November 2012 the charges against the applicant were modified to specify the circumstances of the dispersal of the demonstration on 6 May 2012 and to include an accusation that during the demonstration the applicant had been obstructing the police by building barricades and trying to break through the police cordon.
On 5 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 6 July 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for determination of criminal charges.
On 6 June 2013 the latter court granted another extension of the applicant’s detention, until 24 November 2013.
This decision concerned all 12 defendants in the case.
Having rejected the applicant’s request for another measure of restraint, the court held that no other measure could secure the course of justice in this case.
On 2 July 2013 the Moscow City Court upheld the extension order of 24 May 2013.
On 6 August 2013 the Zamoskvoretskiy District Court of Moscow refused to examine the applicant’s request for a review of his continued detention.
On 23 August 2013 the same court refused to consider an appeal against the decision of 6 August 2013.
(b) Conditions in the detention facility, in the courtroom and during transfer The applicant was detained in the detention facility IZ-77/2 in Moscow.
He claims the conditions of detention had been poor.
He referred to cases against Russia in which the Court had previously found a breach of Article 3 as regards the conditions of detention in IZ-77/2.
The applicant alleges that during the trial he and other 11 defendants are crumped in a small room separated by a plastic partition from the rest of the courtroom.
The room lacks space, ventilation and is virtually soundproof, effectively preventing him from participating in the proceedings.
The bench has no backrest.
The lack of space makes it impossible to have documents or to consult one’s counsel during the hearing.
According to the applicant, the convoy room (the “box”) where he waits before and after the hearing is too small, poorly equipped, lacks ventilation and light.
The applicant cannot use his glasses in the convoy room.
During the personal search conducted in the convoy room the applicant is required to strip naked and to perform sit-ups.
The applicant also alleges that he is transported between the detention facility and the courtroom in the overcrowded vans with lacking ventilation.
The transfer takes about three hours in the morning and up to five hours in the evening, which deprives him of sleep and hot meals.
There is no possibility to use toilet during the transfer.
4.
The application of Mr Zimin (no.
63686/13) (a) The applicant’s arrest and pre-trial detention At the time of his arrest the applicant was a fourth-year student of the Russian State Humanities University, the faculty of history, political studies and law.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the demonstration.
He denies having taken part in any clashes with the police or having caused disorder.
Until 8 June 2013 the applicant continued to study at the university while living at his usual address.
On the latter date the applicant was detained on remand on charges of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012.
On 9 June 2013 the Basmannyy District Court of Moscow examined the request to detain the applicant pending criminal investigation.
It found that there had been sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to influence witnesses, to destroy evidence, or to otherwise obstruct the course of justice.
It noted that the applicant had not provided sufficient grounds for his release.
On 18 June 2012 charges were brought against the applicant for having participated in mass disorders, aggravated by violence, and for having committed an act of violence against an official.
In particular, he was accused of having thrown three chunks of tarmac in the direction of the policemen and hit a policeman causing a fracture of his finger.
On 16 July 2012 the Moscow City Court upheld the detention order of 9 June 2012.
On 6 August 2012 the Basmannyy District Court of Moscow examined the investigator’s request to extend the term of the applicant’s detention by two months and 29 days.
The applicant requested to select another measure of restraint pending trial, such as house arrest, or recognisance not to leave Moscow, or bail, or personal guarantees.
On the same day the court found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 November 2012.
On 12 September 2012 the Moscow City Court upheld the extension order of 6 August 2012.
On 30 October 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 20 November 2012 the charges against the applicant were modified to specify the circumstances of the dispersal of the demonstration on 6 May 2012 and to reiterate the accusation that the applicant had thrown the chunks of tarmac in the direction of the policemen at least three times, causing the injury.
It also stated that he had attempted to break through the police cordon.
On 1 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 8 June 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for determination of criminal charges.
On 6 June 2013 the latter court granted another extension of the applicant’s detention, until 24 November 2013.
This decision concerned all 12 defendants in the case.
Having rejected the applicant’s request for another measure of restraint, the court held that no other measure could secure the course of justice in this case.
On 2 July 2013 the Moscow City Court upheld this extension order.
On 6 August 2013 the Zamoskvoretskiy District Court of Moscow refused to examine the applicant’s request for a review of his continued detention.
On 23 August 2013 the same court refused to consider an appeal against the decision of 6 August 2013.
(b) Conditions in the detention facility, in the courtroom and during transfer The applicant was detained in the detention facility IZ-77/5 in Moscow.
He claims that the conditions in the facility had been poor.
The applicant alleges that during the trial he and other 11 defendants are crumped in a small room separated by a plastic partition from the rest of the courtroom.
The room lacks space, ventilation and is virtually soundproof, effectively preventing him from participating in the proceedings.
The bench has no backrest.
The lack of space makes it impossible to have documents or to consult one’s counsel during the hearing.
According to the applicant, the convoy room (the “box”) where he waits before and after the hearing is too small, poorly equipped, lacks ventilation and light.
The applicant cannot use his glasses in the convoy room.
During the personal search conducted in the convoy room the applicant is required to strip naked and to perform sit-ups.
The applicant also alleges that he is transported between the detention facility and the courtroom in the overcrowded vans with lacking ventilation.
The transfer takes about three hours in the morning and up to five hours in the evening, which deprives him of sleep and hot meals.
There is no possibility to use toilet during the transfer.
COMPLAINTS All applicants complain under Article 5 § 1 of the Convention that their pre-trial detention was not based on a “reasonable suspicion” that they had committed a criminal offence.
They further complain that their detention on remand was not justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention.
In addition to that, the applicants have made the following individual complaints: Mr Lutskevich (no.
2613/13), Mr Polikhovich (no.
62630/13) and Mr Zimin (no.
63686/13) The applicants complain under Article 3 of the Convention about the allegedly poor conditions of the pre-trial detention in IZ-77/2 and IZ-77/5 in Moscow, the allegedly poor conditions in the courtroom and during the prison transfer.
Mr Lutskevich The applicant also alleges that he had been beaten up by the police during the dispersal of the rally on 6 May 2012 and that there has been no effective investigation following his complaint about it.
These complaints fall to be examined under Article 3 of the Convention.
Mr Gushchin (no.
53390/13) The applicant also complains under Article 6 of the Convention about various violations of fair trial guarantees in the criminal proceedings against him.
QUESTIONS TO THE PARTIES I.
QUESTIONS RELATING TO ALL APPLICANTS 1.
In respect of each of the applicants, the Government are invited to provide an update on the progress of the applicant’s criminal case and on the preventive measures currently applied to him (pre-trial detention or other).
If the applicant’s detention was extended after the date of the applicant’s last letter to the Court, the Government are invited to indicate the overall length of the detention and the reasons for the extension, and to produce copies of the relevant detention orders and judicial decisions.
2.
In the proceedings in which detention was imposed or extended (remand proceedings), did the courts satisfy themselves that there existed a “reasonable suspicion” against the applicants, as required by Article 5 § 1 (c) of the Convention?
In particular, in the remand proceedings did the courts assess evidence showing the existence of such “reasonable suspicion” (see Khudoyorov v. Russia, no.
6847/02, § 180, 8 November 2005, and Shcheglyuk v. Russia, no.
7649/02, § 43, 14 December 2006)?
3.
Having regard to the reasons expressly relied on by the domestic courts in the detention orders (see, for example, Bykov v. Russia [GC], no.
4378/02, § 66, 10 March 2009, and Savenkova v. Russia, no.
30930/02, §§ 85 and 87, 4 March 2010), was the applicants’ detention on remand justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention in conjunction with Article 5 § 1 (c) thereof?
In particular: 4.
Did the authorities display “special diligence” in the conduct of the proceedings against the applicants, as required by Article 5 § 3 of the Convention?
In particular, did the courts assess specific procedural actions which needed to be taken during the investigation and the trial, and the reasons why those actions had not been taken earlier or could not have been taken more promptly (see Valeriy Samoylov v. Russia, no.
57541/09, § 123, 24 January 2012, and Syngayevskiy v. Russia, no.
17628/03, §§ 82-86, 27 March 2012)?
II.
Judgment
FIRST SECTIONCASE OF KONOVALOVA v. RUSSIA
(Application no. 37873/04)
JUDGMENT
This version was rectified on 21 November 2014under Rule 81 of the Rules of Court. STRASBOURG
9 October 2014
FINAL
16/02/2015
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Konovalova v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Paulo Pinto de Albuquerque,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar,
Having deliberated in private on 16 September 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 37873/04) 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, Ms Yevgeniya Alekseyevna Konovalova (“the applicant”), on 5 August 2004. 2. The applicant was represented by Mr A. I. Konovalov, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that she had been compelled to give birth to her child in front of medical students, and that this was in breach of domestic law and incompatible with the Convention. 4. On 9 March 2009 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1980 and lives in St Petersburg. A. The applicant’s hospitalisation and the birth of her child
6. On the morning of 23 April 1999 the pregnant applicant, after her contractions had started, was taken by ambulance to the gynaecology ward of the S. M. Kirov Military Medical Academy Hospital. 7. Following her admission, she was handed a booklet issued by the hospital which contained, among other things, a notice warning patients about their possible involvement in the clinical teaching taking place at the hospital. The notice read:
“We ask you to respect the fact that medical treatment in our hospital is combined with teaching for students studying obstetrics and gynaecology. Because of this, all patients are involved in the study process.”
8. The exact time at which the booklet was handed to her is unclear. 9. At 9 a.m. the applicant was examined by a doctor, who established that she was forty weeks pregnant and that there were complications with the pregnancy because she had mild polyhydramnios (excess amniotic fluid). The doctor noted that the applicant’s contractions appeared premature and that she was suffering from fatigue. In view of these symptoms, she was put in a drug-induced sleep, which lasted from 10 a.m. to 12 noon. 10. At 2 p.m. the applicant’s doctor again established that the contractions had been premature and prescribed her anti-contraction medication to suppress premature labour. 11. Between 2 and 10 p.m. the applicant underwent various medical examinations. The doctors found no other pathologies except that she had been having irregular contractions. 12. According to the applicant, at around 3 p.m. she was informed that her delivery was scheduled for the next day and that it would be attended by medical students. 13. At 10 p.m. the applicant was put in a drug-induced sleep. During the night her condition was monitored by doctors. 14. At 8 a.m. the next day, after the applicant had been woken up, the frequency and intensity of her contractions increased. The doctors found traces of meconium in her amniotic fluid, which indicated there was a risk that the foetus was suffering from hypoxia. The applicant was prescribed medicine to improve uteroplacental hemodynamics (blood flow to the placenta). 15. At 9 a.m. the doctors carried out a cardiotocography examination and described the state of health of both the applicant and her foetus as satisfactory. They also decided to conduct a vaginal delivery. According to the applicant, in the delivery room she objected to the presence of medical students at the birth. 16. The birth lasted from 10 to 10.35 a.m. in the presence of doctors and medical students, who had apparently received some information about her state of health and medical treatment. During the labour the doctors performed an episiotomy (incision). The child was diagnosed with light asphyxia. At 1 p.m. the child was moved to a special care baby unit and remained there until 13 May 1999, the date the applicant took her home. B. The applicant’s complaints to the hospital
17. On 10 August 1999 the applicant lodged a complaint with the hospital, seeking compensation for non-pecuniary damage allegedly caused as a result of the measures aimed at delaying the birth. 18. In response, the hospital administration carried out an internal inquiry. The results of were set out in a report dated 14 August 1999, which confirmed that the delivery had been conducted in line with the relevant standards, and that upon the applicant’s admission she had been notified of the possible presence of the public during her labour. The relevant part of the report read as follows:
“... fourth-year medical students were present in the delivery room during [the applicant’s] labour, as [per] their timetable for 24 April 1999. This could not have had any negative impact on the outcome of the birth. Management of the delivery was performed by [the head of the Maternity Department]. On admission [the applicant] was notified of the possible presence of the public during her labour. Obstetricians did not intentionally delay the birth. The treatment was carried out in the best interests of the mother and foetus in accordance with the particular circumstances of the applicant’s delivery...”
19. On 19 August 1999 the hospital dismissed the applicant’s request, stating that there had not been any mistakes in the management of the birth. C. Civil proceedings against the hospital
20. On 27 July 2000 the applicant sued the hospital in the St Petersburg Vyborg District Court ("the District Court"). She sought compensation for non-pecuniary damage and a public apology for the intentional delay to her labour and the non-authorised presence of third parties during the birth. 21. On 4 September 2002 the District Court ordered an expert examination of the applicant’s case. Experts were requested to examine whether or not the applicant’s delivery had been intentionally delayed and whether or not her labour had been affected by the presence of the students. 22. In their report dated 27 September 2002 the experts concluded that:
“[The hospital] provided [the applicant] with medical care without any shortcomings capable of deteriorating the health of mother or child. The medical treatment was adequate and carried out timeously. After [the applicant’s admission] she had been carefully examined by doctors, who had made the correct diagnosis and prepared an adequate plan for the birth. Owing to the prematurity of [the applicant’s] contractions and her general fatigue, the prescription of a drug-induced sleep should be considered an appropriate measure. The subsequent treatment [for] the premature contractions was necessary...
Childbirth is stressful for every woman. The presence of [the hospital’s] medical students, even at the second stage of delivery, when the pregnant woman was bearing down, could not have affected management of the labour. The delivery could only have been adversely affected at the first stage. During the bearing down phase, a pregnant woman is usually focused on her physical activity. The presence of the public could not adversely affect her labour. Medical documents show that it was impossible to delay the delivery at the second stage, the stage of unintentional bearing down. The documents in the [applicant’s] case file contain no evidence to confirm that the birth was intentionally delayed with a view to arranging a study of this case by medical students.”
23. On 25 November 2003 the District Court rejected the applicant’s claim. Relying on the above-mentioned expert report, it held that the quality of the applicant’s treatment at the hospital had been adequate. It further noted that the domestic law, in particular, the Health Care Act, in force at the time, did not require the consent of a patient to the presence of medical students in writing. It also established the fact that the applicant had been informed of her involvement in the study process beforehand, as she had received the hospital’s booklet containing an explicit warning about the possible presence of medical students during her treatment. The District Court dismissed her argument that she had objected to the presence of the public during the birth as unsubstantiated by accepting the oral submission of her doctor that no such objection had been made. The court did not verify the doctor’s statements in this respect by questioning other witnesses and did not refer to any other evidence in connection with the issue. It concluded that the hospital doctors had acted lawfully and had not caused her any non‐pecuniary damage. 24. The relevant part of the judgment reads as follows:
“... The applicant lodged a claim seeking compensation for non-pecuniary damage ... [She] alleged that the birth of her child had been intentionally delayed to arrange for a public procedure in the presence of medical students. [She] stated that the demonstration of her labour, which had been carried out without her consent, had caused her physical and psychological suffering and violated her rights. She stated that the defendant should pay her RUB 300,000 in compensation for non-pecuniary damage. The representatives of [the hospital] objected to the claim. They stated that the [applicant] had been aware of the study process in [the hospital] before she had been admitted there ... They further argued that [she] had received adequate and timely medical treatment ... [B. ], a doctor who assisted [the applicant] during her labour stated while being questioned ... [in] court that the medical care had been provided in line with the expected standards and without delay. The applicant did not make any complaints about the quality of [her] medical care. [B.] also submitted that it was impossible to delay labour. According to her, the presence of students lasted only a few minutes. The students’ curriculum provided that they had to take part in doctors’ rounds and the medical treatment of patients... In accordance with Article 54 of the Health Care Act, students of secondary and higher medical educational institutions are allowed to assist in the administration of medical treatment in line with the requirements of their curriculum and under the supervision of medical personnel. The relevant rules are to be set forth by the Ministry of Health of Russia. Articles 32 and 33 of the Health Care Act provide that such medical interventions may not be performed without a patient’s consent, which must be confirmed in [writing]. The court finds that the mere presence of [the hospital’s] students in the delivery room cannot be construed as a medical intervention within the meaning of Articles 32 and 33 of the Health Care Act. As can be seen from the case file documents, ambulances do not usually take their patients to [hospital]. [The applicant] was taken to [the hospital] because her husband served in the [army]. According to [the applicant’s] statements, she was aware of her possible involvement in the study process (see the booklet). The case file contains no evidence which could support the allegations that she had objected to the presence of the public during the delivery. Taking into account the circumstances of this case, the court sees no grounds to find the [hospital’s] doctors guilty of inflicting any non-pecuniary damage or physical or moral suffering on the applicant. Accordingly, [the hospital] is under no obligation to pay any compensation [to her] ...”
25. On 24 May 2004 the St Petersburg City Court upheld the District Court’s judgment on appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Health Care Act (Federal law no. 5487-I dated 22 July 1993), as in force at the relevant time
26. Article 32 of the Health Care Act provided that the voluntary and informed consent of a patient was a necessary precondition for any medical intervention. 27. Article 33 stated that a patient or his or her legal representative was entitled to refuse a medical intervention or request its discontinuance, save for the exceptions mentioned in Article 34. 28. Article 34 stipulated that an individual’s medical treatment could be performed without his or her consent or that of his or her representative if he or she (1) was suffering from a disease which was dangerous to others, or (2) was suffering from serious mental illness, or (3) had committed a socially dangerous act for which his or her medical treatment was prescribed by law. 29. Article 54 set forth that students of secondary and higher medical educational institutions were allowed to assist in medical treatment in line with the requirements of their curriculum and under the supervision of the medical personnel responsible for their professional studies. Students’ involvement in medical treatment was to be regulated by a special set of rules to be issued by an executive agency in charge of healthcare. It does not appear that such rules were issued until 15 January 2007 (see paragraph 31 below). 30. Article 61 provided that information about an individual’s request for medical care, the state of his or her health, a diagnosis of disease, or other data obtained as a result of his or her examination and treatment constituted confidential medical information. The individual was to have a firm guarantee of the confidentiality of the information imparted. It further stipulated that the dissemination of confidential medical information by persons who had had access to it was not permitted, except: (1) where examination and treatment was required of an individual incapable, on account of his or her condition, of expressing his or her will; (2) where there existed a threat of dissemination of infectious diseases, mass poisoning or infections; (3) upon the request of various official investigative bodies or a court in connection with a pending investigation or court proceedings; (3.1) upon the request of a body carrying out supervision in respect of the behaviour of a convict; (4) in cases of treatment of an underage person for drug addiction, to keep their parents and legal representatives informed; (5) where there were grounds to believe that an individual’s health was at risk as a result of unlawful acts; (6) with a view to carrying out a military medical examination. Lastly, Article 61 provided that the persons who, in accordance with the law, were in receipt of the confidential medical information were, along with medical and pharmaceutical officials, liable, account being taken of the extent of the resulting damage, for the disclosure of the medical secret under the disciplinary, administrative or criminal law in accordance with the relevant legislation. B. Regulations on the admission of students of secondary and higher medical educational institutions to medical operations on patients, approved by Order no. 30 of the Ministry of Healthcare and Social Development of Russia of 15 January 2007
31. Paragraph 4 of the Regulations on the admission of students of secondary and higher medical educational institutions to medical operations on patients provides that students may take part in the medical treatment of patients under the supervision of medical personnel, namely employees of healthcare establishments. Their involvement must take place in accordance with the requirements of medical ethics and must be performed with the consent of the patient or his representative. III. RELEVANT INTERNATIONAL MATERIALS
A. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine)
32. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine was opened for signature on 4 April 1997 and entered into force on 1 December 1999. It has been ratified and entered into force in respect of twenty-nine Council of Europe member States, namely Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Latvia, Lithuania, Moldova, Montenegro, Norway, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Switzerland, The former Yugolslav Republic of Macedonia and Turkey. [1] The Russian Federation has not ratified or signed the Convention. Its relevant provisions read as follows:
Article 5: General rule
“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.”
B. General Recommendation No. 24 adopted by the Committee on the Elimination of Discrimination against Women (CEDAW)
33. At its 20th session which took place in 1999 the Committee on the Elimination of Discrimination against Women adopted the following opinion and recommendations for action by the States parties to the Convention on the Elimination of All Forms of Discrimination against Women (ratified by all Council of Europe member States):
“20. Women have the right to be fully informed, by properly trained personnel, of their options in agreeing to treatment or research, including likely benefits and potential adverse effects of proposed procedures and available alternatives. 22. States parties should also report on measures taken to ensure access to quality health care services, for example, by making them acceptable to women. Acceptable services are those which are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality and is sensitive to her needs and perspectives. States parties should not permit forms of coercion, ... that violate women’s rights to informed consent and dignity. ...
31. States parties should also, in particular:
(e) Require all health services to be consistent with the human rights of women, including the rights to autonomy, privacy, confidentiality, informed consent and choice.”
C. A Declaration on the Promotion of Patients’ Rights in Europe
34. The Declaration was adopted within the framework of the European Consultation on the Rights of Patients, held in Amsterdam on 28-30 March 1994 under the auspices of the World Health Organisation’s Regional Office for Europe (WHO/EURO). The Consultation came at the end of a long preparatory process, during which WHO/EURO encouraged the emerging movement in favor of patients’ rights by, inter alia, carrying out studies and surveys on the development of patients’ rights throughout Europe. In its relevant part the Declaration stated as follows:
“3.9 The informed consent of the patient is needed for participation in clinical teaching.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
35. The applicant complained under Article 8 of the Convention about the unauthorised presence of medical students during the birth of her child. This Convention provision reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
36. The Government submitted that there had been no interference with the applicant’s rights, as the students’ presence did not amount to “an interference” since she had implicitly given her consent in this respect and had never objected to her treatment at the hospital. Moreover, the students were not involved in the medical procedure themselves, being only spectators. The Government further submitted that any interference with the applicant’s rights was lawful, as it had been performed in compliance with the students’ curriculum and the Health Care Act. The alleged interference pursued the legitimate aim of providing for the needs of the educational process and was proportional to its aim because in-hospital training was the optimal means of ensuring elevated standards of medical education. 37. The applicant argued that the presence of the public during the delivery constituted “an interference” with her Article 8 rights. This interference was not lawful as she had not given written consent, and it was also neither necessary nor proportionate, because the notification about the possible presence of the public had been belated and had resulted in her inability to choose another hospital. According to her, she had only learned of the presence of the students at 3 p.m. on 23 April 1999. She was nearly unconscious at the time and had no access to a telephone to contact her relatives to arrange to have the child elsewhere. Moreover, given her physical condition she could not have left the hospital on her own. B. The Court’s assessment
1. Admissibility
38. The Court notes that the present complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits
(a) Whether there was an interference with the applicant’s private life
39. The Court reiterates that under its Article 8 case-law, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, among other things, information relating to one’s personal identity, such as a person’s name, photograph, or physical and moral integrity (see, for example, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, 7 February 2012) and generally extends to the personal information which individuals can legitimately expect to not be exposed to the public without their consent (see Flinkkilä and Others v. Finland, no. 25576/04, § 75, 6 April 2010; Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010; and Ageyevy v. Russia, no. 7075/10, § 193, 18 April 2013). It also incorporates the right to respect for both the decisions to become and not to become a parent (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‐I) and, more specifically, the right of choosing the circumstances of becoming a parent (see Ternovszky v. Hungary, no. 67545/09, § 22, 14 December 2010). 40. Moreover, Article 8 encompasses the physical integrity of a person, since a person’s body is the most intimate aspect of private life, and medical intervention, even if it is of minor importance, constitutes an interference with this right (see Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003‐IX, V.C. v. Slovakia, no. 18968/07, §§ 138-142, ECHR 2011; Solomakhin v. Ukraine, no. 24429/03, § 33, 15 March 2012; and I.G. and Others v. Slovakia, no. 15966/04, §§ 135 - 146, 13 November 2012). 41. Turning to the circumstances of the instant case, the Court notes that given the sensitive nature of the medical procedure which the applicant underwent on 24 April 1999, and the fact that the medical students witnessed it and thus had access to the confidential medical information concerning the applicant’s condition (see paragraphs 16 above), there is no doubt that such an arrangement amounted to “an interference” with the applicant’s private life within the meaning of Article 8 of the Convention. (b) Whether the interference was in accordance with the law
42. Under the Court’s case-law, the expression “in accordance with the law” in Article 8 § 2 requires, among other things, that the measure in question should have some basis in domestic law (see, for example, Aleksandra Dmitriyeva v. Russia, no. 9390/05, §§ 104-07, 3 November 2011), but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). In order for the law to meet the criterion of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the persons concerned – if need be, with appropriate advice – to regulate their conduct. In the context of medical treatment, the domestic law must provide some protection for the individual against arbitrary interference with his or her rights under Article 8 (see, mutatis mutandis, X v. Finland, no. 34806/04, § 217, ECHR 2012). 43. The Court notes that the presence of medical students during the birth of the applicant’s child was authorised in accordance with Article 54 of the Health Care Act, which provided that students of specialist medical educational institutions were allowed to assist in medical treatment in line with the requirements of their curriculum and under the supervision of the medical personnel responsible for their professional studies (see paragraph 29 above). Thus, it cannot be said the interference with the applicant’s private life was devoid of any legal basis. 44. At the same time, the Court observes that Article 54 was a legal provision of a general nature, principally aimed at enabling medical students to participate in treatments for educational purposes. It delegated regulatory matters in this area to a competent executive agency, and as such did not contain specific rules protecting patients’ private sphere (see paragraph 29 above). In particular, the provision did not contain any safeguards capable of providing protection to patients’ private lives in such situations. The Court would note in this connection that the relevant set of rules was only adopted eight years after the events, in the form of Order no. 30 of the Ministry of Healthcare and Social Development of Russia of 15 January 2007 (see paragraph 31 above). This document contained a procedural safeguard in the form of the requirement to obtain patients’ consent for the participation of medical students in medical treatment. 45. In the Court’s view, the absence of any safeguards against arbitrary interference with patients’ rights in the relevant domestic law at the time constituted a serious shortcoming (see, mutatis mutandis, V.C., cited above, §§ 138-142), which, in the circumstances of the present case, was further exacerbated by the way in which the hospital and the domestic courts approached the issue. 46. The Court would point out firstly that the information notice referred to by the hospital in the domestic proceedings contained a rather vague reference to the involvement of students in “the study process” without specifying the exact scope and degree of this involvement. Moreover, the information was presented in such a way as to suggest that the participation was mandatory and seemed not to leave any choice for the applicant to decide whether or not to refuse to allow the students to participate (see paragraph 7 above). In such circumstances, it is difficult to say that the applicant had received prior notification about the arrangement and could foresee its exact consequences. 47. Furthermore, the Court would note that the applicant learned of the presence of medical students during the birth the day before, between two sessions of drug-induced sleep, when she had already been for some time in a state of extreme stress and fatigue on account of her prolonged contractions (see paragraphs 6-16 above). It is unclear whether the applicant was given any choice regarding the participation of students on this occasion and whether, in the circumstances, she was at all capable of making an intelligible informed decision (see paragraph 37 above). 48. As regards the domestic courts’ analysis of the applicant’s civil claim, the Court notes that the applicable legal provision did not regulate the matter in detail and did not require the hospital to obtain the applicant’s consent (see paragraph 29 above). Although the domestic courts found that under the applicable domestic law written consent was not necessary, they considered that implicit consent had been given (see paragraphs 23-25 above). Even if this finding had any bearing on the outcome of the domestic case, it remains unreliable because the courts simply deferred to the statements of the doctor without questioning any other witnesses, such as other medical personnel and the students involved (see paragraph 23 above). More importantly, the domestic courts did not take into account other relevant circumstances of the case, such as the alleged insufficiency of the information contained in the hospital’s notice, the applicant’s vulnerable condition during notification as pointed out by the Court earlier, and the availability of any alternative arrangements in case the applicant decided to refuse the presence of the students during the birth (see paragraph 37 above). 49. In the light of the above, the Court finds that the presence of medical students during the birth of the applicant’s child on 24 April 1999 did not comply with the requirement of lawfulness of Article 8 § 2 of the Convention, on account of the lack of sufficient procedural safeguards against arbitrary interference with the applicant’s Article 8 rights in the domestic law at the time. 50. There has therefore been a breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
51. Relying on Article 3 of the Convention the applicant alleged that management of the birth was deficient and that her delivery had been intentionally delayed so that medical students could be present. This provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
52. The Court observes that the allegations of mismanagement and the intentional delay to the birth were raised by the applicant in the civil proceedings against the hospital. The courts examined this submission in detail and on the basis of, among other things, the report of 27 September 2002 compiled by a panel of medical experts, rejected the applicant’s allegations as unfounded (see paragraphs 18 and 22-25 above). The case file contains no indications which would enable the Court to conclude otherwise. 53. In these circumstances, the Court concludes that the applicant’s complaint under Article 3 is unsubstantiated. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
54. 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.”
A. Damage
55. The applicant claimed 140,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage. 56. The Government argued that the applicant’s complaint concerning compensation of pecuniary damage is unsubstantiated. They noted that the applicant’s daughter had been provided with the required medical treatment free of charge. As to the non-pecuniary damage, they denied the existence of any damage attributable to the authorities. 57. The Court takes the view that the case file documents disclose no evidence confirming the existence of any pecuniary damage; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have suffered stress and frustration as a result of the violation found. Making an assessment on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses
58. The applicant claimed 8,000 Russian roubles (RUB) for her expenses incurred before the national courts. According to her, she had to pay RUB 4,000 in court fees and a further RUB 4,000 to cover the cost of the expert examination. In a letter dated 5 August 2009 she claimed EUR 30 for postal expenses in the Strasbourg proceedings and submitted a receipt dated 23 August 2009 confirming payment of various fees in the amount of RUB 4,400. 59. The Government did not comment on these claims. 60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the lump sum of EUR 200 covering costs under all heads. C. Default interest
61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning the alleged violation of the applicant’s right to respect for her private life admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent state at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousands euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident
[1]. Rectified on 21 November 2014: the text was “It has been ratified by six Council of Europe member States, namely Croatia, Denmark, France, the Netherlands, Switzerland and Turkey.”