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Dolores Utrilla
17th March 2020
Human Rights

ECtHR: New ruling on pre-trial detention requirements arising from the prohibition of torture and from procedural and family rights

Today, the European Court of Human Rights delivered its judgment in Kosenko v. Russia (applications nos. 15669/13 and 76140/13), a case concerning the justification and the conditions of pre-trial detention of a Russian national receiving a disability pension for schizophrenia, after his participation in a street protest against the Russian Government.

The ECtHR found there had been no violation of the prohibition of inhuman or degrading treatment enshrined in Article 3 of the European Convention on Human Rights. The applicant claimed that he had not received adequate medical assistance for his psychiatric condition in the first five months of his pre-trial detention. However, the Strasbourg-based court noted, in accordance with its case law, that the detention of mentally-ill individuals in regular detention facilities is not contrary to Article 3 ECHR if the medical care provided to the person is adequate. In the case under examination, the ECtHR found that the medical supervision and treatment granted to the applicant, including several psychiatric consultations duly recorded and medical prescriptions where needed, was adequate. It also considered the relatively short period under examination (less than five months) and the absence of aggravating factors related to the material conditions of detention.

However, the ECtHR found a violation of the right to liberty and security and of the right to trial within a reasonable time or to release pending trial (Article 5(3) ECHR). In particular, the ECtHR noted that Russian courts had not seriously assessed the applicant’s personal situation when considering the potential to abscond, reoffend or obstruct the course of justice. The Strasbourg-based court observed that Russian authorities relied only on the gravity of the charges when deciding on the applicant’s pre-trial detention, and admitted that the specific offence imputed to him – taking part in an assault on a police officer, causing injuries but no lasting harm (classified as a serious offence) – may have initially warranted his pre-trial detention. However, the ECtHR stressed that, with the passage of time, the nature and the seriousness of the offence as grounds for the applicant’s continued detention inevitably became less and less relevant, and that Russian authorities failed to provide additional reasons to justify the extended period of detention. Furthermore, the ECtHR took into account that the applicant’s detention was extended without serious consideration of alternative preventive measures, such as personal guarantees by prominent public figures submitted by the applicant.

The ECtHR also declared that the right to respect for private and family life under Article 8 ECHR had been breached, on account of the refusal to give the applicant short-term leave to attend his mother’s funeral. In this regard, the ECtHR recalled that the authorities can refuse an individual the right to attend the funeral of his parents if there are compelling reasons for such refusal and if no alternative solution can be found, but noted that, in the case at hand, Russian authorities had neither given any consideration to the applicant’s request, nor assessed his individual situation. According to today’s judgment, Article 8 ECHR was violated also because the Russian courts rejected the request to secure the applicant’s right to family visits without providing any justification and refused to examine the matter in spite of the fact that the applicant’s sister was his legal guardian.

The judgment is available here.


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