Постановление Европейского суда по правам человека от 30.09.2010 «Дело Пахомов (pakhomov) против России» [англ.]

Город принятия

(Application No. 44917/08)
(Strasbourg, 30.IX.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Pakhomov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 9 September 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 44917/08) 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, Mr Anton Valeryevich Pakhomov ("the applicant"), on 21 July 2008.

2. The applicant, who had been granted legal aid, was represented by Mr S. Onishchenko, a lawyer practising in Vladivostok. 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 his conviction for drug trafficking had been based on statements by an anonymous witness and prosecution witnesses whom he had been unable to confront in open court. In addition, in a letter of 9 June 2009 requesting priority treatment for his application, the applicant complained of serious deterioration of his health in view of the absence of adequate medical assistance.

4. Further to the applicant's request, on 16 June 2009 the Court granted priority to the application (Rule 41 of the Rules of Court).

5. On 23 September 2009 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).

I. The circumstances of the case
6. The applicant was born in 1980 and lives in the town of Artyom, Primorye Region.

A. Criminal proceedings against the applicant
7. On 27 April 2007 a group of police officers entered the applicant's flat, intending to search it. The applicant, who had been offered the opportunity to hand over any illegal substances before the search, handed the police officers 2.5 grams of tobacco and marijuana compound. No other illegal substances or money were found during the subsequent search of the flat carried out by the police. The applicant was arrested and taken to the Artyom town temporary detention centre, where a police investigator, Mr S., informed him that he had been arrested on suspicion of selling drugs to an anonymous person, whom the police called Mr I., during a police-controlled purchase on 27 February 2007. The investigator also notified the applicant of an identification parade scheduled for the following day, in which Mr I. was to participate.

8. On 28 April 2007 the applicant was taken to the Artyom Town Department of the Federal Service for Drug Control where he remained handcuffed to a heating device for several hours. The identification parade did not take place.

9. On the same day the Artyom Town Court authorised the applicant's placement in custody for two months. He was transferred to temporary detention facility No. IZ-25/1 in Vladivostok.

10. In the middle of May 2007 the applicant was notified of another charge brought against him. The prosecution authorities accused him of selling drugs to Mr I. on another occasion, namely 9 March 2007.

11. On 11 June 2007 the police investigator, Mr S., served the applicant and his lawyer with a bill of indictment. The investigation offered the following version of events on which the charges against the applicant were grounded. According to the investigating authorities, on an unspecified date an anonymous person, whose personal data could not be disclosed and who was called "Mr I.", approached a police officer, Mr Za., and informed the latter that he could buy drugs from the applicant. The police officer Za. decided to act on the information received from Mr I. and organised a police-controlled purchase of drugs. He invited two soldiers serving in the local military unit, Mr K. and Mr M., to act as lay witnesses during the purchase. On 27 February 2007 police officer Za., accompanied by another police officer, Mr G., two lay witnesses, Mr K. and Mr M., and Mr I., drove to the applicant's house. On arrival to the applicant's block of flats, officer Za. gave Mr I. money to purchase drugs from the applicant. Serial numbers of the bills were recorded in advance. Mr I., accompanied by Mr K., left the car and went to the applicant's flat. Mr K. did not enter the flat, waiting for Mr I. on the ground floor. Mr I. spent approximately fifteen minutes in the applicant's flat. After he had returned to the car, Mr I. handed the police officers a package containing 2.08 grams of a substance, later identified by forensic experts as a compound of tobacco and cannabis, and stated that he had bought drugs from the applicant. The investigating authorities also insisted that the same sequence of events, albeit with the participation of other lay witnesses, Mr Se. and Mr B., occurred on 9 March 2007.

12. On 16 October 2007 the applicant's lawyer recorded a conversation with a Mr A., who insisted that he could identify Mr I. According to Mr A., in the middle of March 2007 he had met with the person identified as Mr I. The latter had told Mr A. that he had framed the applicant in a drug case. According to Mr I., the police had arrested him when he was carrying drugs and as a result he had been forced to participate in two police-controlled drug purchases. Mr I. allegedly explained that he had kept the money which the police officers had given him for drug purchases and in return he had allegedly given the police officers drugs which he had hidden in advance behind a heating device in the hall near the applicant's flat.

13. On 14 December 2007 the Artyom Town Court found the applicant guilty of two counts of attempted drug trafficking and one count of drug possession, and sentenced him to eight years' imprisonment. The conviction was based on the following evidence:

- statements by Mr I., given during the pre-trial investigation and read out in open court, despite the applicant's objection. In those statements Mr I. gave a detailed description of the events on 27 February and 9 March 2007 pertaining to his participation in the police-controlled purchases of drugs from the applicant. As follows from the Town Court's judgment, Mr I.'s personal data were not disclosed to the applicant. Mr I.'s absence from trial hearings had been considered "exceptional". Having cited no reasons which could justify Mr I.'s absence from the court hearing, the Town Court held that the absence was prompted by "exceptional circumstances". On a number of occasions the defence unsuccessfully asked the Town Court to disclose Mr I.'s identity.

- statements made in open court by Ms M. and Ms D., lay witnesses who had assisted the police officers during the search of the applicant's flat on 27 April 2007. Both Ms M. and Ms D. confirmed that the applicant had voluntarily turned over to the police officers a small package of a substance containing marijuana.

- statements made in a trial hearing by Mr Se., who had acted as a lay witness during the police-controlled purchase of drugs from the applicant on 9 March 2007. Mr Se. explained that on a request from a police officer he had followed Mr I. to the door of the applicant's flat. Mr I. had spent several minutes in the flat. After Mr I. left the flat he had a small package, which he gave to the police officers.

- statements given by another lay witness, Mr B., during the pre-trial investigation and read out in open court with the parties' consent. Mr B.'s statements were similar to those given by Mr Se.

- statements by Mr K., a lay witness who had participated in the police-controlled purchase of drugs from the applicant on 27 February 2007. Those statements were given by Mr K. during an interview with an investigator and read out in a trial hearing. The Town Court, without providing any further details, held that reasons for Mr K.'s absence from the trial were "exceptional". In his statements Mr K. provided a detailed description of events on 27 February 2007 and corroborated the prosecution's version.

- statements by police officer Za., made in open court. The police officer set out an account of events on 27 February, 9 March and 27 April 2007, insisting that on the first two dates Mr I. had purchased drugs from the applicant during the police-controlled operations and that on the later date drugs had been found in the applicant's flat during the search.

- report on a body search of Mr I. on 27 February 2007 showing that Mr I. had had no illegal substances or money on him before he took part in the police-controlled purchase of drugs from the applicant.

- report drawn up by police officer Za. on 27 February 2007 showing that the latter had given Mr I. four 100-rouble bills to purchase drugs from the applicant;

- report of 27 February 2007 indicating that on his return from the applicant's flat Mr I. had handed the police officers a package containing a phytogenous substance.

- an expert report confirming that the substances which Mr I. had handed to the police officers during the police-controlled operations on 27 February and 9 March 2007 contained cannabis.

- an expert report, according to which cannabis handed over by Mr I. to the police on 27 February and 9 March 2007 most probably had the same origin. However, the cannabis which the applicant voluntarily turned over to the police during the search of his flat was from a different batch.

14. On request by the defence the Town Court heard a number of witnesses and rejected their testimony as unreliable. Two defence witnesses testified that they had visited the applicant on 9 March 2007 and had been in his flat at the time when the police had allegedly performed the controlled drug purchase. They insisted that no one had visited the applicant's flat when they had been there and that the applicant had not sold drugs to anyone. Another witness testified that she had been in the applicant's flat with her brother on 27 February 2007 at the time of the alleged drug purchase. She stressed that there had been no other visitors. The Town Court interviewed Mr So., the head of the military unit where lay witnesses Mr K. and Mr P. had been performing military service. Mr So. stated that, on a written request from the applicant's lawyer, he had had a conversation with Mr K., who had insisted that he had not seen Mr I. entering the applicant's flat. The Town Court also studied a statement written by Mr K. at the end of that conversation. Mr K. confirmed that after Mr I. had approached the door of the applicant's flat he had ordered Mr K. to go down to the ground floor and thus Mr K. had been unable to observe Mr I. entering the flat. The Town Court refused to call Mr A., whom the applicant had asked to be questioned about Mr I.'s identity.

15. The applicant's lawyer appealed against the conviction, arguing, inter alia, that the Town Court had read out statements by Mr I. and Mr K., disregarding the objection by the defence to that effect, and that it had refused to hear Mr A.

16. On 3 March 2008 the Primorye Regional Court upheld the judgment of 14 December 2007, endorsing the reasons given by the Town Court. As regards the applicant's argument concerning the statements by Mr I. and Mr K., the Regional Court held as follows:

"The [Town] court read out the statements by Mr I. and Mr K. in open court, complying with the requirements of Article 281 of the Russian Code of Criminal Procedure, because the [Town] court found that the reasons for their absence from the hearings were exceptional and [it] issued a reasoned judgment to that effect."
The Regional Court also concluded that the Town Court had rightfully dismissed the applicant's and his lawyer's requests for the disclosure of Mr I.'s identity.

17. On 15 January 2010 the Presidium of the Primorye Regional Court, by way of a supervisory review, quashed the judgments of 14 December 2007 and 3 March 2008 in the part concerning the applicant's conviction for drug trafficking, and upheld the conviction for possession of drugs found in his flat during the search. It stressed that having based, to a substantial degree, the applicant's conviction for drug trafficking on statements by witnesses whom the applicant had been unable to confront in open court, including the anonymous witness I. and a lay witness K., the domestic courts had violated Article 6 § 3 (d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Presidium concluded that there was no evidence that the applicant was guilty of drug trafficking. Having acquitted the applicant of that charge, the Presidium reduced his sentence to two years' imprisonment and authorised his immediate release, as he had already served the entire sentence. The Presidium also confirmed the applicant's right to rehabilitation.

B. Medical assistance during imprisonment
18. The following account has been drawn up from the medical records submitted by the Government.

19. In 2003 the applicant was diagnosed with pulmonary tuberculosis. He underwent treatment in a tuberculosis hospital in Artyom.

20. On 28 April 2007, on his admission to temporary detention facility No. IZ-25/1, the applicant informed an attending prison doctor that he had tuberculosis and complained of a cough and general fatigue. The doctor noted in the admission record that an examination by a tuberculosis specialist was required.

21. Three days later the applicant underwent an X-ray examination which revealed the presence of a tuberculoma, measuring two centimetres in width and three centimetres in length, in the upper lobe of the left lung and dense foci in the right lung. On the basis of the X-ray examination the tuberculosis specialist recorded the following diagnosis in the applicant's medical history: "large residual changes in the form of a tuberculoma on the left and dense foci on the