CEDH · CASELAW;CLIN;ENG — 27 août 2019

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Information Note on the Court’s case-law 232 August-September 2019 Magnitskiy and Others v. Russia - 32631/09 and 53799/12 Judgment 27.8.2019 [Section III] Article 6 Criminal proceedings Article 6-1 Fair hearing Posthumous conviction for tax fraud: violation Article 2 Positive obligations Article 2-1 Life Effective investigation Death in pre-trial detention following delays in providing emergency medical care and failure to conduct adequate and timely investigation: violation Facts – The first applicant, a tax and accountancy expert with a Moscow-based law firm, had carried out investigations on behalf of a client in relation to alleged tax fraud. He had subsequently been arrested on suspicion of having assisted in tax evasion. While in custody the first applicant was diagnosed with pancreatitis and he died in pre-trial detention on 16 November 2009. He was convicted posthumously. Prior to his death, the first applicant had complained to the Court, in particular about the conditions of detention and the justification and length of his pre-trial detention. The first applicant’s wife and his mother (who were the second and third applicants, respectively) lodged further complaints following his death. Law – Article 2 (a)     Substantive aspect – The first applicant had not received essential medical tests and examinations in custody. The failure to perform the necessary surgical procedure in a timely manner could well have contributed significantly to his death. The remand prison had been unable to address his medical needs owing to understaffing, lack of medical equipment, and lack of specialised medical training and qualifications among the prison medical staff. No meaningful medical records had been maintained. The custodial authorities had failed to provide an adequate response to the emergency situation on 16 November 2009. The decision to urgently send the first applicant to the medical facility had been taken at 9.30 a.m. However, it was not until almost 2.30 p.m. that an ambulance had been called. Although it had taken the emergency team less than thirty minutes to arrive at the facility, they had to wait another two hours and thirty-five minutes for an escort into the facility. Those delays had been unreasonably long and manifestly inadequate in such a grave medical emergency. By depriving the first applicant of important medical care, the domestic authorities had unreasonably put his life in danger. (b)     Procedural aspect – The authorities had not demonstrated the required thoroughness in dealing with the case. The autopsy examination had been perfunctory and thus important questions had been left unresolved. The rejection of the third applicant’s request for an additional post-mortem examination had seriously damaged the efficiency of the investigation as a whole. Following the first applicant’s death and the opening of the investigation, his lawyer had promptly asked the investigative authorities to secure video recordings of the events of 16 November 2009. However, it was not until February 2011 that the investigator had asked for the footage. The investigators had not properly assessed the medical personnel’s response to the rapid deterioration of the first applicant’s health. They had disregarded the delays in calling an ambulance and transferring the first applicant. They had also failed to establish a sufficiently clear account of the last hours of the first applicant’s life. The time-barring of the prison doctor’s prosecution was one of the most serious indicators of the ineffectiveness of the investigation. The expiry of the limitation period irreparably damaged the effectiveness of the investigation. Conclusion : violation (unanimously). Article 6 § 1 (a)     Admissibility – Where the death or disappearance of the direct victim in circumstances engaging the State’s responsibility preceded the lodging of an application with the Court, any other person with a close link to the victim had standing to lodge such an application, in particular as regards Articles 2 and 3. The next of kin might exceptionally have standing to lodge a complaint under Article   5 § 1 if it was connected to a complaint under Article 2 relating to the victim’s death or disappearance engaging the State’s liability. The same logic might be applied to a complaint under Article 6 if the above-mentioned criteria had been met, that was to say if a person had died during the criminal proceedings against him or her and if the death had occurred in circumstances engaging the State’s responsibility. The first applicant had died in custody after being deprived of important medical care, in breach of the State’s positive obligations under Article 2. His detention had taken place in the context of criminal proceedings which had ended with his posthumous conviction. The second and third applicants’ complaints under Article 6 regarding the posthumous trial had been sufficiently connected to the death of the first applicant and they could therefore claim to be victims of the alleged violations. (b)     Merits – The trial of a dead person was by its very nature incompatible with the principle of the equality of arms and all the guarantees of a fair trial. It was self-evident that it was not possible to punish an individual who had died. Any punishment imposed on a dead person would violate his or her dignity. Lastly, a trial of a dead person ran counter to the object and purpose of Article 6, as well as to the principle of good faith and the principle of effectiveness inherent in that Article. The Court accepted that there might be a need for judicial examination of criminal charges even in respect of a deceased person, in particular in the case of rehabilitation proceedings, the purpose of which was to correct a wrongful conviction. However, judicial examination had to be free of any risks of posthumous conviction of a person whose guilt had not been established by a court when he or she had been alive. Conclusion : violation (unanimously). The Court also found, unanimously, a violation of Article 3 as regards the first applicant’s conditions of detention; a violation of Article 3 under its substantive and procedural limbs as regards injuries the first applicant had received in custody; and a violation of Article 5 § 3 on the basis that his pre-trial detention had not been based on sufficient reasons. The Court also found, unanimously, a violation of Article 6 § 2 as the first applicant had not stood trial and had been convicted posthumously in breach of the fundamental rule of criminal law that criminal liability did not survive the person who had committed the criminal act. Finally, the Court, unanimously, dismissed the applicants’ claim under Article 46 of the Convention, finding that it was not necessary to indicate any individual or general measures. Article 41: EUR 34,000 jointly to the second and third applicants in respect of non-pecuniary damage. (See also Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], 47848/08, 17   July 2014, Information Note 176 ; Muršić v. Croatia [GC], 7334/13, 20 October 2016, Information Note 200 ; and Bouyid v. Belgium [GC], 23380/09, 28 September 2015, Information Note 188 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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