Постановление Европейского суда по правам человека от 30.07.2009 «Дело Алехин (Alekhin) против России» [англ.]

urteen days of receipt of the case file (if the defendant is in custody), the judge is required to either: (1) refer the case to a competent court; (2) fix a date for a preliminary hearing (предварительное слушание); or (3) fix a date for trial (Article 227). On receipt of the case file the judge must determine, in particular, whether the preventive measure applied should be lifted or changed (Articles 228 (3) and 231 § 2 (6)).
85. The period of detention "during the judicial proceedings" is calculated up to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
86. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide on the appeal within three days of its receipt (Article 108 § 10).
87. Defendants may petition officials or a court to take procedural decisions that would secure their rights and legitimate interests (Article 119 §§ 1 and 2). Such petition may be lodged at any time during the investigation or the judicial proceedings (Article 120). It must be examined by the official or the court within three days (Article 121).
88. At any time during the judicial proceedings the court may order, vary or discontinue any preventive measure, including detention (Article 255 § 1). Any such decision must be given in the deliberations room and signed by all the judges in the formation (Article 256). An appeal against such a decision lies to the higher court (Article 255 § 4).
89. The appeal court must examine the criminal case within a month of the receipt of the case file (Article 374).

B. State liability for unlawful detention

90. The State or regional treasury is liable - irrespective of any fault by State officials - for damage sustained by an individual on account of, in particular, unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1070 § 1 of the Civil Code).
91. A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to freedom of movement (Articles 150 and 151 of the Civil Code). Non-pecuniary damage must be compensated for irrespective of the tortfeasor's fault in the event of, in particular, unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1100 § 2).

III. Relevant Council of Europe documents

92. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT") read as follows:
"a. Access to a doctor
... 35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...
37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health."


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