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FIRST
SECTION
CASE OF SAKHVADZE v. RUSSIA
(Application
no. 15492/09)
JUDGMENT
STRASBOURG
10
January 2012
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 Sakhvadze v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15492/09) 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 Teymuraz Zurabovich
Sakhvadze (“the applicant”), on 4 February 2009.
- The
applicant was represented by Mr F. Bagryanskiy, Mr A. Mikhaylov
and Mr M. Ovchinnikov, lawyers practising in Vladimir. The Russian
Government (“the Government”) were represented by
G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On
30 September 2009 the President of the First Section decided to give
priority treatment to the application and to give notice of it to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and is currently serving a prison sentence
in the Vladimir region.
- In
2004 and 2005 the applicant was convicted of a number of criminal
offences and sentenced to eight years’ imprisonment. He has
served his sentence in prisons in the Vladimir region.
A. The applicant’s medical conditions and health
care from July 2006 to June 2009
- From
20 July 2006 to 5 June 2009 the applicant was admitted to the
tuberculosis unit in the hospital attached to Vladimir prison no. 3
(“the hospital”). On 5 June 2009 the applicant was
transferred to medical facility LIU-8 in Kirzhach, in the Vladimir
region.
1. The applicant’s account
- The
applicant raised the following specific grievances concerning his
medical history and state of health.
(a) Myelopathy
- On an unspecified date the applicant was diagnosed with
cervical spinal myelopathy accompanied by motor neuron impairment. In
2009 he described his condition as follows. He could bend his left
knee but his right knee only bent with severe pain. As a result, the
applicant hardly ever moved and his leg muscles were atrophied. His
right-hand fingers were crooked; it was painful when he tried to
straighten them. He suffered from severe pain in his right hand, left
shoulder, small of the back, knees, neck, left foot and hip. His
right-hand palm, back and right hip were covered with sores. He had
sores on his right-hand fingers which suppurated.
- During his admission and stay in the hospital from July
2006 to June 2009 the applicant was examined by neurologist K. The
applicant’s medical records indicate that the applicant was
bedridden and, for a period of time, communicated with hospital staff
by handwritten notes. The neurologist recommended an MRI scan and
early release from prison on health grounds. For unspecified reasons,
no MRI scan was carried out. Early release was refused in August
2006.
- In
September 2006 the applicant was examined by neurologist N., who
prescribed physical therapy, vitamin-based treatment, pain relief
medication and non-steroidal anti-inflammatory drugs. It was also
recommended that the applicant be examined by a rheumatologist and a
trauma specialist (see also paragraph 17 below). X-rays of the right
wrist joint and left knee joint were indicated.
- It
is unclear what acts of medical care were performed in relation to
the applicant’s myelopathy from September 2006 to February
2007.
- In
reply to a letter from the applicant’s lawyer, in February 2007
L., a neurologist at the Vladimir Region Clinical Hospital, wrote to
him advising that myelopathy was a chronic and slowly progressing
disease, leading to gradual deterioration of the patient’s
condition with increased symptoms related to the motor function,
level of awareness, the function of the pelvic organs and bedsores.
The neurologist concluded that “complex therapy was required in
a specialised medical institution, including an electromyography
(EMG) test every six months, irrespective of the treatment’s
effectiveness”.
- In
September 2007 the applicant complained to the national authorities
in relation to inadequate medical assistance rendered to him and poor
conditions of his detention (see paragraphs 41-58 below).
- In 2008 one of the above-mentioned neurologists
examined the applicant and prescribed massage, medication and
vitamins.
- According
to the applicant, he was not provided with any specific treatment
(medication or physical therapy) in relation to his myelopathy. Any
mention in his medical records of a refusal to receive
myelopahy related treatment was forged. None of the refusals
were written on a special form and none of them bore his signature,
despite the requirements of national legislation (see also paragraph
18 below).
- Since
early 2009 the applicant has suffered from frequent convulsions and
has had difficulties in holding items in his hands.
- In May 2009 the applicant was examined by neurologist
N., who made the following findings:
“There is long-term and progressive post-traumatic
damage to the lumbosacral plexus, which prevents active movement with
the left leg. Damage to the lumbar spine and left leg prevents
autonomous walking and results in a considerable reduction of
autonomous movement. Thus, at the moment, the patient has a
persisting dysfunction of the motor function of the left leg,
impossibility of autonomous movement, dysfunction of the motor
function of the right arm/hand...The patient requires constant help
and active treatment. Focus should be on physiotherapeutic procedures
and medical rehabilitation (electro-stimulation,
anaesthetic/analgesic treatment). I recommend medication by Milgamma
compositum, Berlition and adequate non steroid
anaesthetic/analgesic treatment and vascular medication with Kurantil
and a course of Aktovegin... A consultation with a trauma specialist
and a rheumatologist is necessary to [further] adapt [existing]
medical procedures.”
Similar
recommendations were made in September 2009.
(b) Other medical conditions and
complaints
- Since 1998 the applicant has been suffering from
tuberculosis, which became drug-resistant and affected by haemoptysis
(coughing up of blood) in July 2006. The applicant was prescribed
medication and injections but refused them on numerous occasions
because of acute negative side effects such as nausea. The
applicant’s medical records indicate that on several occasions
medical staff talked to him about the need to continue treatment but
to no avail.
- On
an unspecified date before his admission to hospital, the applicant
underwent a gastrectomy, significantly reducing his stomach. The
applicant has also had half of his tongue removed, due to which his
speech is impaired. In 2009 the applicant weighed less than 56 kg for
180 cm in height.
- The
applicant has also suffered (and continues to suffer) from acute pain
in the stomach area, the liver, the kidneys and from nausea.
According to the applicant, he was not examined by a
gastroenterologist or given any treatment. An endoscopy was carried
out for the first time in 2008. On three occasions it was not carried
out, although the applicant had not made a valid refusal. No
medication was provided to him.
- In
January 2007 the applicant was given an electrocardiogram (ECG) test.
No prior or subsequent tests or medication were provided, despite the
applicant’s acute and persistent heart pains. He was not
examined by a cardiologist.
- Since
mid-2007 the applicant has also suffered from enuresis (urinary
incontinence). It was recorded in late 2007 that the applicant had
made verbal complaints to the unit supervisor about his treatment and
had asked that his mattress be replaced because of a urine odour. His
request was refused, as no smells were detected and the mattress was
dry.
- Despite
his liver pains, he was not examined by a hepatologist; nor was he
given any medication. He submitted that the latter was particularly
important, given that he had received chemotherapy for his
tuberculosis.
- In
July 2006 the applicant was examined by an ophthalmologist. In March
2007 he was diagnosed with slight nearsightedness and retinal
angiospasm. In reply to a complaint he made of deteriorating
eyesight, in April 2008 it was recorded that no visual acuity test
could be carried out in the cell and no treatment was required.
- The
applicant has lost most of his teeth. His remaining teeth and his
gums are rotten and cause him pain. The applicant had two
consultations with a dentist; no treatment was given following those
consultations.
- According
to the applicant, no medical assistance has been provided to him –
in particular, from late December 2008 to June 2009 – in
relation to his above-mentioned conditions (see also paragraph 27
below).
(c) Discharge from the hospital
- A discharge certificate was issued on 12 January 2009.
It is unclear whether the applicant remained in solitary confinement
or was transferred to another part of the hospital. On 15 January
2009 he complained to a neurologist of pain in his extremities and
was prescribed medicine. He was also examined by a therapist and was
given medicines for headache and abdominal pains. He was examined on
22 January 2009 due to the worsening of his state of health and was
given vitamins and medicines for intestinal disbacteriosis and
colitis. Three days later he was examined by an ENT specialist, on
whose prescription he was given an iodine-based liquid to rinse his
mouth with. On 29 January 2009 he was examined by a dentist and an
ENT specialist who confirmed a diagnosis of antritis. In February
2009 he was provided with a follow-up check-up and was told to
continue the treatment.
2. The Government
- The
Government argued, with reference to the applicant’s medical
records, that on numerous occasions between 2006 and 2008 the
applicant had refused to be examined, to take medicines (mainly
tuberculosis related), to undergo medical examinations or to submit
to laboratory tests. For instance, as could be seen from his medical
records, the applicant had complained of pain in his body on 12 and
19 September 2007, pelvic pain on 8 October 2007 and pain in his arms
on 7 March 2008 but had “plainly refused to submit to an
examination”.
- In support of their statements, the Government relied
on typed copies of the applicant’s medical records for the
period from July 2006 to January 2009, medical reports (медицинские
заключения)
of 21 December 2009 issued by the administration of prison
no. 3, as well as on various certificates issued by the
administrations of prisons no. 3 and LIU-8, their licences for
providing medical care and documents confirming the qualifications of
their medical staff.
- The Government stated that the above documents were
official documents submitted by duly authorised public officials in
the performance of their official duties. These officials, by the
nature of their functions, were aware of the fact that any false
information could result in prosecution for abuse of power or forgery
of official documents.
B. Material conditions of the applicant’s
confinement in the prison hospital
1. The applicant’s account
- In
July 2006 the applicant was admitted to the tuberculosis unit of the
hospital attached to prison no. 3.
- Between
July and November 2007 the applicant was kept in various cells
accommodating, at various times, two to eight people. In the first
cell there was no mandatory ventilation. The cells were dirty, poorly
heated, filled with unpleasant kitchen odours and infested with
insects and rodents.
- In November 2007 the applicant was transferred to
another cell in which he was kept alone. The cell window was
covered with newspaper, hindering access to natural light. The
temperature in the cell and the adjoining shower room was often low.
- Being
unable to shout for help owing to the fact that part of his tongue
was missing, the applicant was obliged to attract the hospital
attendants’ attention by throwing items at the door or by
knocking on his bedside table. The door to the cell was
kept locked and was unlocked by prison officers at the attendants’
request.
- The
applicant needed assistance to use toilet and to wash himself. Once a
month two detainees took him to the shower room and washed him. In
addition, a hospital attendant brought a basin into the cell so that
the applicant could wash his face. The applicant was provided with a
piece of soap and a small roll of toilet paper once a month.
- The
cell was filled with a urine odour because of the applicant’s
enuresis. According to the applicant, his request for a new mattress
and more frequent cleaning of bed linen was refused. The food
was of poor quality. The applicant was not provided with drinking
water and had to drink tap water. He was not taken outdoors during
his stay in the hospital.
- The
applicant was not visited by doctors or given medication after 29
December 2008. On 12 January 2009 a prison doctor told him
that he would soon be discharged from the hospital because he had
completed his tuberculosis treatment and that further treatment would
be of no use because the applicant was suffering from a
drug-resistant form of the disease and his lungs were deteriorating.
- Although
he had been informed of his imminent discharge, the applicant was not
transferred from the prison hospital. He was not examined by the
doctors; once a day he received visits from hospital attendants who
brought him food and water and cleaned his chamber pot. The doctors
and nurses refused to examine him, claiming that he had been
discharged and thus was not “on the hospital’s books”.
- The applicant submitted written statements from
several detainees, who, however, had not been kept in the same
cell(s). Mr Po. described the general material conditions of
confinement in the tuberculosis unit between 2004 and 2009. Mr V.
described the conditions of his detention in the hospital in 2004 and
“in and after 2005”. Mr D. and Mr Ch. stated that since
September 2007 they had been kept in rooms measuring approximately
fourteen square metres and accommodating ten people. They added that
they had heard about the applicant’s solitary confinement;
about his inability to move around and to take care of himself; and
that he had not been taken outdoors for a long time.
2. The Government’s account
- According to the Government, the applicant had been
kept alone under the constant supervision of one hospital attendant
and twenty four hour assistance from on-duty staff had been
available. At any moment the applicant could have asked to be helped
by the attendant present. The applicant was able to access, alone or
with assistance, a chamber pot or the toilet, which was two metres
from his cell. The toilet was equipped with a flushing cistern; a
sink was also made available there. The chamber pot was kept in the
cell and was always cleaned after use. Bedding had been cleaned and a
shower had been available once per week. As could be seen from the
applicant’s medical records, in 2007 the applicant had not
needed another mattress because he had not asked for it or because
there had not been a urine odour in the cell. The cell had
functioning mandatory ventilation and air was able to enter the cell
through a window ventilator. The window provided access to natural
light; this window was properly glazed. Artificial light was also
available in the cell. The heating system functioned properly,
achieving a room temperature of 20 degrees Celsius on average. The
applicant had been fed in accordance with the regulations concerning
ill detainees. The applicant had been taken, on foot or in a
wheelchair, to outdoor exercise three times per day.
C. The applicant’s complaints to national
authorities
- On 7 September 2007 the applicant and his lawyer
requested that criminal proceedings be initiated concerning
inadequate medical assistance rendered to the applicant and poor
conditions of his detention. They referred to Article 124 (“failure
to provide medical assistance”) and Article 236 (“breach
of sanitary and health regulations”) of the Russian Criminal
Code.
- Subsequent
events can be split into two parallel sets of proceedings, in which
the applicant was represented by a lawyer before the national
authorities, including the courts.
1. Proceedings under the Prosecutors Act and the Code
of Civil Procedure
- On 5 October 2007 an assistant to the Vladimir town
prosecutor supervising penitentiary facilities (“the town
prosecutor”) examined the above complaint and issued a written
opinion (заключение)
stating that no action was required from the prosecutor under section
33 of the Prosecutors Act (see paragraph 59 below). The town
prosecutor approved the assistant prosecutor’s opinion; the
applicant was informed accordingly.
- The applicant brought court proceedings, challenging
the opinion of 5 October 2007 and the town prosecutor’s refusal
to take action. By a judgment of 21 January 2008 the Oktyabrskiy
District Court in Vladimir held that this refusal was unlawful
because the inquiry had not been thorough for the following reasons:
the applicant’s medical records had not been assessed; no
medical expert had been appointed; the material conditions of the
applicant’s confinement in hospital had not been inspected; the
applicant and his counsel had not been heard; no assessment had been
made of the applicant’s complaints concerning lack of outdoor
exercise, the deplorable quality of food, insufficiency of hygiene
items and the sanitary condition of the shower room and toilets.
- In February 2008 an assistant town prosecutor issued a
new opinion, again concluding that that no action was required from
the town prosecutor under section 33 of the Prosecutors Act. This
decision was confirmed by the town prosecutor. However, in March 2008
for unspecified reasons the town prosecutor reconsidered his own
decision and ordered an additional inquiry. In April 2008 the
assistant prosecutor issued a new refusal, which was then confirmed
by the town prosecutor.
- The applicant brought court proceedings to challenge
this refusal. By a judgment of 16 June 2008 the District Court held
that the refusal had not been properly reasoned because only part of
the procedural shortcomings identified in the court decision of 21
January 2008 had been remedied in the resumed inquiry. The court held
as follows:
“The proper examination of the complaint relating
to inadequate medical assistance within the penitentiary system
required that an expert opinion should be sought from specialists
unrelated to the penitentiary system... The refusal under review
contained no assessment of the complaints concerning chest and heart
pain; ... no assessment was made of the allegations concerning the
lack of consultation with a cardiologist and the absence of any
electrocardiogram...The prosecutor’s findings as to the quality
of the food was based on ... reports, while no indication was made as
to the method used, for instance lab tests. No assessment was made of
the relevant logbooks. The assessment concerning sanitary
installations, the alleged presence of rodents and insects, and lack
of outdoor exercise was not thorough...”
- In March 2009 the regional tuberculosis hospital
examined the applicant’s medical records at the request of the
Vladimir Regional Department of the Health Ministry. The hospital
considered that the applicant had been provided with adequate
tuberculosis-related treatment in prison no. 3 and that the
effectiveness of this treatment had been adversely affected by the
applicant’s repeated refusals to take medicines and to comply
with his doctors’ recommendations.
- Also, three people, apparently connected to the
regional clinical hospital, examined the applicant’s medical
records and on 2 April 2009 issued a short report concerning
illnesses affecting the applicant’s nervous system. The panel
held as follows:
“The treatment provided [to the applicant] was in
full compliance with the applicable standards, in line with the
diagnosis established in 2003 and the recommendations issued by
medical specialists in Moscow. Since 2003 the patient has been
regularly supervised by neurologists from the regional hospital and
medical institutions [in] Moscow and Cherepovets. The disease has
developed gradually so that additional check-ups were necessary in
the meantime. Conclusions: no cervical spine MRI scan has been
carried out, despite a recommendation [that one should be conducted]
after computer X-ray imaging; no consultation by a neurosurgeon has
been arranged; no thioctic acid based medicine has been prescribed.”
- The town prosecutor asked the Vladimir Regional
Department of the Health Ministry to carry out an inquiry regarding
the medical care provided to the applicant in detention. The
department’s letter of 6 April 2009 indicated that the
department had carried out an “independent” inquiry
involving unspecified “out-of-staff” leading medical
professionals who had examined the applicant’s medical records.
They concluded as follows:
“Treatment provided [to the applicant] in prison
no. 3 was in compliance with the standard treatment required for
patients suffering from drug-resistant tuberculosis... All relevant
methods of treatment were used. The effectiveness of the treatment
was affected by [the applicant’s] repeated refusals to [take
his] prescribed medicines, as confirmed by the medical records.
Treatment of [the applicant’s] somatic illnesses was fully
compliant with the diagnosis and recommendations made by the
Moscow based specialists in 2003. Since 2003 the patient has
been regularly supervised by neurologists from the regional hospital
and medical institutions [in] Moscow and Cherepovets. The disease has
developed gradually so that additional check-ups were necessary in
the meantime. Conclusions: no cervical spine MRI scan has been
carried out, despite a recommendation [that one should be conducted]
after computer X-ray imaging; no consultation by a neurosurgeon has
been arranged; no thioctic acid based medicine has been prescribed.”
- In his opinion of 18 April 2009, an assistant town
prosecutor again considered that no action was required on the part
of the prosecutor in reply to the applicant’s complaint. The
assistant town prosecutor held as follows:
“The applicant has been admitted to hospital in
relation to infiltrating pulmonary tuberculosis, as well as cervical
spinal myelopathy affecting movement of the right arm and the legs...
The main diagnosis (tuberculosis) has been confirmed by
X-rays and bacteria analysis. The following medical acts were carried
out: blood tests, an electromyography (EMG) test in September 2006,
CT scanning in September 2007... As mentioned in the [applicant’s
medical] records, between November 2007 and January 2008 [the
applicant] refused to take medicines for [treating his]
tuberculosis... During his stay in the tuberculosis unit he was
regularly examined by neurologist K. The latter explained that he had
been supervising the patient since 2005.
As can be seen from the medical history: in 2003 the
patient was treated for post traumatic plexopathy. He was given
an EMG test, was examined by a specialist doctor and was diagnosed
with osteochondrosis and discogenic radiculopathy... He received
vascular therapy, B-group vitamins [and] non-steroidal
anti-inflammatory drugs.
In 2006 the applicant was diagnosed with pulmonary
tuberculosis and was treated in a tuberculosis unit. He was given an
EMG test, a CT scan and an X-ray. As a result, he was diagnosed with
cervical spinal myelopathy... radiculopathy [and] sciatic neuralgia
affecting the movement of [his] left foot.
The patient was and is regularly examined by a
neurologist. The [doctor’s] recommendations included a course
of vascular therapy, vitamin therapy and [the applicant] was
instructed about the further intake of muscle [neuromuscular]
relaxants...
At present the patient’s state of health is
stable, he has been regularly examined by a neurologist but has
refused to [take the medicines prescribed for him] in 2006 and 2007.
On several occasions he was examined by specialist medical
professionals (such as a surgeon, a therapist and a dermatologist)
but refused to be examined by a psychiatrist. At present, he is in
section 1 of the hospital in prison no. 3.
In order to assess the medical care afforded [to the
applicant], specialists from the regional department of the Ministry
of Health were asked to examine [his] medical records together with
regional specialists.”
Having
cited the letter of 6 April 2009 (see paragraph 49 above), the
assistant prosecutor concluded that “independent specialists
[had] considered that the patient had been treated in full compliance
with the relevant standards”.
Concerning
the material conditions of the applicant’s confinement, the
assistant prosecutor made the following findings:
“The material in the file discloses that in March
2006 the prison received a favourable (preventive) epidemiological
report. This report is valid until 2011... In February 2008 section 1
of the prison hospital was inspected; [the inspection] did not
disclose any violations of sanitary regulations. Moreover, in
September 2007 repair works were carried out in the tuberculosis
unit. Thus, in 2008 it was not possible to inspect the sanitary
conditions [pertaining in] the earlier period. Food provided to
detainees complied with the relevant regulations concerning minimum
rations for convicts. Food cooking and [detainees’] diet were
controlled by medical professionals together with on-duty officers.
[The applicant] was given a special diet for ill detainees. He was
also provided with the required hygiene items, which could be
confirmed by his signatures in the logbooks. Clothes and bedding had
to be submitted for laundering once per week and would be
disinfected.
During the inquiry detainees T., P. and S. were
interviewed. Their testimony was not convincing, as they had been
named by [the applicant’s] lawyer. Detainees Kh., Z. and Pa.
were also interviewed and stated that the material conditions in the
living premises of the tuberculosis unit, including food, had been
acceptable; cleaning had been regular. [The applicant] had been in
the unit since October 2006 when the material conditions had been the
same; he had been given medication and had had regular check-ups. An
attending assistant had been assigned to him.
Zo. and Pi. had not answered the summons and could not
be interviewed.
The prison has a contract with a private company for
disinfecting the premises and eradicating rodents and insects. This
work was done on a weekly basis. No complaints were made by detainees
or staff.
Consequently, the arguments raised by the [applicant’s]
lawyers were examined during the additional inquiry and should be
dismissed as unfounded.”
- The
applicant sought judicial review of the refusal of 18 April 2009
under Chapter 25 of the Code of Civil Procedure (see paragraph 60
below). The applicant argued that the report of 2 April 2009 (see
paragraph 48 above) had not been “independent” and
thorough because: there had been no information about the
professional status and the medical specialities of the experts, who
may or may not have been the report’s signatories; the
applicant had not been examined by any of those individuals; the
report had contained no findings concerning the adequacy of the
applicant’s medical care in relation to his neurological
illness, various (liver, stomach and heart) pains, eyesight or his
dental care. Thus, a court-ordered forensic examination was
indispensable.
- By a judgment of 3 August 2009 the Oktyabrskiy
District Court in Vladimir examined the applicant’s complaint
against the above refusal of 18 April 2009 and rejected the
complaint. The court considered that a public prosecutor was
empowered to ensure that no inhuman or degrading treatment was
inflicted on detainees. To comply with this function the prosecutor
was empowered to carry out inquiries, which should result in reasoned
decisions. Such an inquiry had been carried out between 2007 and
2009. In the court’s view, the prosecutor had examined all
relevant medical documents, including expert reports, and had
interviewed a number of public officials, detainees, the applicant
and his counsel. The court also held as follows:
“A number of medical professionals were charged
with the task of assessing the treatment provided to the applicant.
An independent expert examination concluded that the applicable
standards for treating tuberculosis had been respected; the treatment
had been affected by the applicant’s repeated refusals, as
recorded, to comply with the recommended course of treatment. The
applicable standards of treating somatic diseases had been equally
respected. From 2003 the applicant had been supervised by
neurologists; no cervical spine MRI scan had been carried out,
despite a recommendation [that one should be conducted] after
computed X-ray imaging; no consultation by a neurosurgeon had been
arranged; no thioctic acid based medicine had been prescribed.
As to the complaints concerning chest or heart pain, as
indicated in the inquiry report, the applicant had been examined by
cardiologists, had had an electrocardiogram test and had received
treatment.
No sufficient argument was adduced by the applicant for
commissioning yet another independent expert report. In any event,
this argument had not been raised during the inquiry.
As to food, the applicant was given and continues to
receive a special diet. The food control record indicates that [his]
rations, their quality and quantity were in line with applicable
instructions and standards.
As to sanitary installations, the competent authority
has issued a report confirming the sanitary conditions [were] proper.
It was established that in September 2007 significant repair works
had been ongoing in the tuberculosis unit. Thus, it had been
impracticable to inspect the units, the shower room or the toilet
facilities to which the applicant had previously had access. The
findings concerning the absence of rodents and insects in the
detention facility had been made with reference to a valid contract
for disinfection services, the current reports concerning the
performance of the contract and due to the absence of any complaints
from the [facility’s] personnel or detainees. Hygiene items had
been given to the applicant against his signature on a monthly basis.
Clothing and bedding was and is disinfected and cleaned once per
week.
In view of the foregoing, the court concludes that the
2009 inquiry report and its conclusions were reasoned and thorough,
and comply with the requirements of [applicable] legislation”.
- The applicant appealed. On 6 October 2009 the Regional
Court upheld the judgment of 3 August 2009. It held as follows:
“The applicant’s arguments concerning the
correctness of [his] medical diagnosis and the scope and correctness
of [his] treatment were thoroughly examined and dismissed by the
first-instance court. The latter’s assessment was based on all
available medical evidence, which had been received from, amongst
other sources, sources unrelated to the penal authorities.”
2. Proceedings under the Code of Criminal Procedure
- In the meantime, the applicant complained that no
decision had been taken as to the institution of criminal
proceedings, as requested. By a decision of 23 November 2007 the
regional prosecutor’s office refused to institute criminal
proceedings, considering there had not been the corpus delicti
required under Articles 124 and 236 of the Criminal Code in the
actions of the hospital’s staff. On 21 January 2008 the higher
investigating authority quashed this decision, considering that it
was necessary to interview the medical staff of the detention
facility.
- On
31 January 2008 the investigating authority issued a new refusal to
institute criminal proceedings for lack of a criminal offence. On
6 March 2008 the Oktyabrskiy District Court in Vladimir
dismissed the applicant’s appeal and upheld this refusal. On 10
April 2008 the Vladimir Regional Court upheld the first-instance
decision of 6 March 2008.
- For
unspecified reasons, the inquiry was resumed. On 12 May 2008 an
investigator in the Vladimir Investigations Department issued another
refusal to institute criminal proceedings.
- On
23 July 2008 the Leninskiy District Court in Vladimir examined the
applicant’s complaint against the refusal of 12 May 2008 under
Article 125 of the Code of Criminal Procedure and rejected the
complaint. The court held as follows:
“Since 2007 the inquiry proceedings have been
resumed on several occasions... The applicant is being detained in a
medical facility and has been and is being provided with appropriate
medical assistance. It has been established that on a number of
occasions he impeded treatment and refused to make medicines. It has
not been established that the deterioration of his health was due to
inaction on the part of the medical staff. No dangerousness on
account of a breach of sanitary regulations, required by Article 236
of the Criminal Code, has been established.”
- On 11 September 2008 the Regional Court upheld the
above judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Complaints procedures
- Section 33 of the Prosecutors Act (Federal Law
no. 2202-I of 17 January 1992) provided at the time that a
prosecutor was empowered to order a detention facility to take
measures necessary in order that a detainee’s rights and
freedoms be respected.
- In accordance with ruling no. 2 of 10 February
2009 made by the Plenary Supreme Court of Russia, complaints brought
by detainees in relation to inappropriate conditions of detention
(for instance, a lack of adequate medical assistance), as well as
complaints against decisions imposing disciplinary penalties, should
be examined by a court under a procedure prescribed by Chapter 25 of
the Code of Civil Procedure. According to this procedure, a person
may lodge a court action if an action or omission by a public
authority or official has violated an individual’s rights or
freedoms, has impeded their exercise or has unlawfully imposed an
obligation or liability (Articles 254 and 255 of the Code). This
action should be lodged within three months of the date when the
person learnt about the violation of his rights or freedoms (Article
256). If the court considers that the complaint is justified, the
court shall order the respondent authority or official to remedy the
violation (Article 258).
B. Health care in detention
- Section
29 of the Health Care Act (Federal Law no. 5487-I of 22 July
1993) provides that detainees have a right to medical assistance,
such assistance being provided if necessary in public or municipal
medical institutions and at public or municipal expense.
- Detailed
regulation of medical care in detention is provided in a Regulation
adopted by the Federal Ministry of Justice and the Federal Ministry
of Health and Social Development (decree no. 640/190 of
17 October 2005). It provides that medical assistance in
detention should be the same as that guaranteed by the general
programme of free health care provided in Russia (Rule 9 of the
Regulation). Outpatient health files and prescription records should
not be handed over to detainees; detainees have a right to receive
information relating to their state of health and should be given
access to medical documents (Rule 65).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged that the conditions of his detention and the health
care in the prison hospital had been so inadequate as to amount to
inhuman and degrading treatment, in breach of Article 3 of the
Convention. He also contended that the respondent State should be
held liable for having failed to investigate his allegations and that
the domestic inquiry had fallen short of the requirements of Article
3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government argued that the applicant had not exhausted domestic
remedies because he had not brought a civil action for compensation
in respect of non-pecuniary damage caused by inadequate health care
and the conditions of his detention. For the Government, such an
action would have had reasonable prospects of success as it would not
have been based on any allegedly systemic problem of cell
overpopulation, as in some other cases before the Court.
- The
applicant submitted that he had sufficiently raised his grievances
before the national authorities (see paragraphs 41-58 above).
- The
Court reiterates that in the area of the exhaustion of domestic
remedies there is a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time – that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant’s complaints and offered reasonable prospects
of success. However, once this burden of proof has been
satisfied it falls to the applicant to establish that the remedy
advanced by the Government had in fact been used or was for some
reason inadequate and ineffective in the particular circumstances of
the case or that there existed special circumstances absolving him or
her from the requirement (see, among other authorities, Akdivar
and Others v. Turkey, 16 September 1996, § 68,
Reports of Judgments and Decisions 1996-IV).
- The
Court observes that the applicant raised his grievances in two
separate proceedings, including judicial review at two levels of
jurisdiction, in respect of the decisions taken by the investigating
or supervising authorities. The first proceedings were carried out
under the Criminal Code and the Code of Criminal Procedure and ended
with a final decision of 11 September 2008 (see paragraphs 41-53
above). The second proceedings were carried out under the Prosecutors
Act and the Code of Civil Procedure and ended with the final decision
of 6 October 2009 (see paragraphs 54-58 above).
- The
respondent Government have not argued, and the Court does not
consider, that the remedies used by the applicant, who was assisted
by a lawyer, were manifestly inappropriate and devoid of any
reasonable prospects of success (see, for comparison, Skorobogatykh
v. Russia, no. 4871/03, §§ 32 and 33, 22 December
2009; see also the Supreme Court’s ruling cited in paragraph 60
above). The applicant lodged this application in February 2009, while
he was still in the prison hospital. The Court does not consider in
the present case that before lodging an application before this Court
the applicant should have brought a civil action for compensation in
respect of non-pecuniary damage. The Court is satisfied that this
action would not have offered reasonable prospects of success in view
of the factual findings made in the above-mentioned second set of
proceedings (see, for comparison, Romokhov v. Russia, no.
4532/04, §§ 101-112, 16 December 2010, and Gladkiy
v. Russia, no. 3242/03, §§ 120 and 121,
21 December 2010). In view of the foregoing, the Court dismisses
the Government’s objection.
- The
Court also considers that the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. No other ground for declaring it inadmissible has been
established. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
- The applicant argued that he had not been provided
with any specific treatment in relation to his myelopathy. Despite a
doctor’s recommendations in 2006, he had not been examined by a
rheumatologist or a trauma specialist; no X-rays of his right wrist
joint and left knee joint had been taken. Despite a doctor’s
recommendation in 2007, an electromyography (EMG) test had not been
carried out every six months. Despite pain in the stomach area and
nausea, he had not been examined by a gastroenterologist and had not
been given any treatment for these symptoms. The referral for an
endoscopy had only been acted upon in 2008. It had failed to be acted
upon on three previous occasions. As to his heart pain, an
electrocardiogram (ECG) had only been carried out in January 2007. No
previous or subsequent tests or medication had been provided, despite
his acute and persistent heart pains. He had not been examined by a
cardiologist. Despite his liver pains, he had not been examined by a
hepatologist; nor had he been given any medication. Such medication
had been particularly important given that he had received
chemotherapy for his tuberculosis. No medical assistance had been
provided in relation to the deterioration in his eyesight or his
dental problems. All mentions in his medical records of refusals to
receive treatment had been forged. None of the refusals had been
recorded on a special form and none of them bore his signature,
despite the requirements of national legislation. Lastly, the
applicant alleged that no medical care had been provided to him
between late December 2008 and June 2009 in relation to the
aforementioned medical conditions.
- The
applicant further argued that it was incumbent on the respondent
Government to refute his allegations, which were sufficiently
specific and detailed. He noted in that connection that as a detained
and seriously ill person, he had been under the control of the staff
of the prison hospital. All relevant medical records had been kept by
the hospital. He had had no opportunity to verify or challenge the
notes made in these records. Moreover, he had been detained alone and
had had a limited ability to speak. In the applicant’s
submission, the Government had not responded to his allegations,
thereby failing to discharge the burden of proof.
- Furthermore,
the applicant contended that the material conditions of his
confinement in the prison hospital, in particular during his solitary
confinement, had been unacceptable (for details see paragraphs 33-39
above).
- Lastly,
the applicant argued, with reference to the Court’s case-law
concerning the procedural limb of Article 3 of the Convention (Labita
v. Italy [GC], no. 26772/95, § 131, ECHR 2000 IV),
that the respondent State had been under an obligation to investigate
his complaints relating to his medical care and the material
conditions of his confinement. Although domestic inquiries had been
carried out at the domestic level, they had not satisfied the
requirements for an “effective and thorough”
investigation, as required under Article 3 of the Convention.
(b) The Government
- The
Government argued that the applicant had been and was being provided
with all necessary medical assistance for the illnesses which he had
already had and those which had developed during his time in
detention, as confirmed by the reports of 23 March and 6 April 2009.
Between July 2006 and January 2009 he had been detained in a medical
facility under the constant supervision of its medical staff,
including during the evening and at night. He had been regularly
examined by a tuberculosis specialist; the progress of the
applicant’s condition and treatment had been recorded. The
applicant had also been regularly examined by several neurologists,
as well as by a surgeon, an ophthalmologist, a dermatologist, an
otolaryngologist and a psychiatrist. The applicant had undergone the
requisite examinations, including biochemical tests, X-rays, an
ultrasound examination, an endoscopy, an EMG test, an ECG, a
pneumogram and a CT scan. He had been given appropriate medication
for his tuberculosis. His treatment had been adversely affected by
his repeated refusals to take his prescribed medicine, as noted in
his medical records.
- As
to the conditions of the applicant’s detention in the hospital,
the Government submitted that the applicant, who was suffering from
an infectious disease, had been kept alone. The Government insisted
that the conditions of his confinement in the tuberculosis unit had
not offended against Article 3 of the Convention.
- Lastly,
the Government argued that the applicant’s grievances had
received a thorough examination by the national authorities.
2. The Court’s assessment
(a) General principles
(i) Ill-treatment
- The Court reiterates that Article 3 of the Convention
enshrines one of the fundamental values of a democratic society. It
prohibits in absolute terms torture or inhuman or degrading treatment
or punishment (see Labita v. Italy [GC], cited above, §
119). However, ill-treatment must attain a minimum level of severity
if it is to fall within the scope of Article 3. The assessment of
this minimum depends on the circumstances of the case, such as the
duration of the treatment, its physical and mental effects and, in
some cases, the sex, age and state of health of the victim (see,
among other authorities, Ireland v. the United Kingdom,
18 January 1978, § 162, Series A no. 25).
- Ill-treatment
that attains such a minimum level of severity usually involves bodily
injury or intense physical or mental suffering. However, even in the
absence of these, where treatment humiliates or debases an
individual, showing a lack of respect for or diminishing his or her
human dignity, or arouses feelings of fear, anguish or inferiority
capable of breaking an individual’s moral and physical
resistance, it may be characterised as degrading and also fall within
the prohibition of Article 3 (see Pretty v. the United Kingdom,
no. 2346/02, § 52, ECHR 2002-III, with further references).
- In
the context of deprivation of liberty, the Court has consistently
stressed that, to fall under Article 3, the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering and humiliation connected with detention (see, mutatis
mutandis, Tyrer v. the United Kingdom, 25 April 1978,
§ 30, Series A no. 26, and Soering v. the United
Kingdom, 7 July 1989, § 100, Series A no. 161).
- Regarding
the issue of health care in detention facilities, the Court
reiterates that under Article 3 of the Convention the State must
ensure that a person is detained in conditions which are compatible
with respect for his human dignity, that the manner and method of the
execution of the measure do not subject him to distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent
in detention and that, given the practical demands of imprisonment,
his health and well-being are adequately ensured by, among other
things, providing him with the requisite medical assistance (see
Kudła v. Poland [GC], no. 30210/96, § 94, ECHR
2000 XI).
- Where
complaints are made about a failure to provide requisite medical
assistance in detention, it is not indispensable for such a failure
to lead to any medical emergency or otherwise cause severe or
prolonged pain in order to find that a detainee was subjected to
treatment incompatible with the guarantees of Article 3 (see Ashot
Harutyunyan v. Armenia, no. 34334/04, § 114, 15 June
2010). The fact that a detainee needed and requested such assistance
but it was unavailable to him may, in certain circumstances, suffice
to reach a conclusion that such treatment was in breach of that
Article (ibid).
- Thus,
although Article 3 cannot be interpreted as laying down a general
obligation to release a detainee on health grounds save for
exceptional cases (see Papon v. France (no. 1) (dec.),
no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.),
no. 48799/99, 5 April 2001), a lack of appropriate medical
treatment may raise an issue under Article 3, even if the
applicant’s state of health does not require his immediate
release.
- The national authorities must ensure that diagnosis
and care in detention facilitates, including prison hospitals, are
prompt and accurate, and that, where necessitated by the nature of a
medical condition, supervision is regular and involves a
comprehensive therapeutic strategy aimed at ensuring the detainee’s
recovery or at least preventing his or her condition from worsening
(see Pitalev v. Russia, no. 34393/03, § 54, 30 July
2009, with further references).
- On
the whole, while taking into consideration “the practical
demands of imprisonment”, the Court reserves sufficient
flexibility in deciding, on a case-by-case basis, whether any
deficiencies in medical care were “compatible with the human
dignity” of a detainee (see Aleksanyan v. Russia,
no. 46468/06, § 140, 22 December 2008).
(ii) Establishment of facts and assessment
of evidence
- The Court reiterates that allegations of ill-treatment
should be supported by appropriate evidence. In assessing evidence,
the Court has generally applied the standard of proof “beyond
reasonable doubt” (see Ireland v. the United Kingdom,
cited above, § 161).
- It
has not been the Court’s purpose to borrow the approach of the
national legal systems that use that standard. The Court’s role
is not to rule on criminal guilt or civil liability, but rather on
Contracting States’ responsibility under the Convention. The
specificity of its task under Article 19 of the Convention – to
ensure the observance by the Contracting States of their engagement
to secure the fundamental rights enshrined in the Convention –
conditions its approach to the issues of evidence and proof. In
proceedings before the Court, there are no procedural barriers to the
admissibility of evidence or pre-determined formulae for its
assessment. It adopts conclusions that are, in its view, supported by
the free evaluation of all evidence, including such inferences as may
flow from the facts and the parties’ submissions. According to
its established case-law, proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Moreover, the level of
persuasion necessary for reaching a particular conclusion and, in
this connection, the distribution of the burden of proof are
intrinsically linked to the specificity of the facts, the nature of
the allegation made and the Convention right at stake (see, among
others, Nachova and Others v. Bulgaria [GC], nos.
43577/98 and 43579/98, § 147, ECHR 2005 VII; Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99,
§ 26, ECHR 2004 VII; and Akdivar and Others,
cited above, § 168).
- The
Court is mindful of the objective difficulties experienced by
detained applicants in collecting evidence to substantiate their
claims about the conditions of their detention. Owing to the
restrictions imposed by the prison regime, detainees cannot
realistically be expected to be able to furnish photographs of their
cell or give precise measurements of its dimensions, temperature or
the amount of natural light. Nevertheless, an applicant must provide
an elaborate and consistent account of the conditions of his or her
detention mentioning the specific factors, such as the dates of his
or her transfer between facilities, which would enable the Court to
determine that the complaint is not manifestly ill-founded or
inadmissible on any other grounds. A credible and reasonably detailed
description of the allegedly degrading conditions of detention
constitutes a prima facie case of ill-treatment and serves as a basis
for giving notice of the complaint to the respondent Government.
- As
to health care in detention, an unsubstantiated allegation of no,
delayed or otherwise unsatisfactory medical care is normally
insufficient to disclose an issue under Article 3 of the Convention.
A credible complaint should normally include, among other things,
sufficient reference to the medical condition in question, related
medical prescriptions which were sought, made or refused, as well as
some evidence – for instance, expert reports – capable of
disclosing serious failings in the applicant’s medical care.
- Convention
proceedings do not in all cases lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he
who alleges something must prove that allegation), as in certain
instances the respondent Government alone have access to information
capable of corroborating or refuting allegations. Failure on a
Government’s part to submit such information without a
satisfactory explanation may give rise to the drawing of inferences
as to the plausibility of the applicant’s allegations (see, in
various contexts, D.H. and Others v. the Czech Republic [GC],
no. 57325/00, § 179, ECHR 2007 IV; Ahmet Özkan
and Others v. Turkey, no. 21689/93, § 426, 6 April
2004; Aleksandr Leonidovich Ivanov v. Russia, no. 33929/03, §§
27-35, 23 September 2010; and Boris Popov v. Russia,
no. 23284/04, §§ 65-67, 28 October 2010).
- Without establishing the truthfulness of each and
every allegation made by the applicant, the Court has previously
chosen in conditions of detention cases to concentrate on
the allegations that have not been disputed by the respondent
Government, or those in respect of which the Government did not
comment, although they had been clearly and consistently formulated
before the domestic authorities and later before the Court (see
Trepashkin v. Russia, no. 36898/03, § 85, 19 July
2007, and Shteyn (Stein) v. Russia, no. 23691/06, § 73,
18 June 2009).
- As
to domestic remedies, the Court has previously stated, for instance
in the context of Article 2 of the Convention, that if an
infringement of the right to life or to physical integrity is not
caused intentionally, the positive obligation imposed by Article 2 to
set up an effective judicial system does not necessarily require the
provision of a criminal-law remedy in every case (see Vo v. France
[GC], no. 53924/00, § 90, ECHR 2004 VIII; see
also, in the context of Article 3 of the Convention, Yazgül
Yılmaz v. Turkey, no. 36369/06, §§
56 and 57, 1 February 2011). For example, in the sphere
of medical negligence, the obligation may also be satisfied if the
legal system affords victims a remedy in the civil courts, either
alone or in conjunction with a remedy in the criminal courts,
enabling any liability on the part of the doctors concerned to be
established and any appropriate civil redress to be obtained (ibid.).
- Concerning
its own scrutiny, the Court reiterates that, in view of the
subsidiary nature of its role, it must be cautious in taking on the
role of a first-instance tribunal of fact, where this is not
rendered unavoidable by the circumstances of a case. The Court has
held in various contexts that where domestic proceedings have taken
place, as in the present case, it is not the Court’s task to
substitute its own assessment of the facts for that of the domestic
courts and, as a general rule, it is for those courts to assess the
evidence before them (see, among others, Giuliani and Gaggio v.
Italy [GC], no. 23458/02, §§ 179 and 180, 24 March
2011). Although the Court is not bound by the findings of domestic
courts, in normal circumstances it requires cogent elements to lead
it to depart from the findings of fact reached by those courts
(ibid).
- At
the same time, as already mentioned, in accordance with Article 19 of
the Convention, the Court’s duty is to ensure the observance of
the engagements undertaken by the Contracting Parties to the
Convention. In its assessment of issues under Article 3 of the
Convention, the Court gives thorough scrutiny to the question of the
authorities’ compliance with prescriptions issued by medical
professionals, in the light of specific allegations made by the
applicant.
(b) Application of the principles to the
present case
- The
Court observes at the outset that the applicant has a relatively long
history of health problems, covering a period dating back to at least
2003. His complaint in the present case concerns one period of his
detention from July 2006 to June 2009 in one medical facility (prison
hospital no. 3). Thereafter, the applicant was transferred to
another detention facility, of which he does not complain.
- The
Court also observes, and it is common ground between the parties,
that some of the applicant’s medical conditions during the
relevant period of time were undeniably serious and required a wide
range of treatment, including medication, supervision and monitoring.
- It
is fundamental for the proper examination of the case to determine
the scope of the complaints raised by the applicant vis-à-vis
the respondent State (see paragraph 70 above). In the applicant’s
submission, he had not been provided with adequate medical care in
relation to his myelopathy, the deterioration of his eyesight, dental
problems, and stomach, heart and liver pains. It is common ground
between the parties that these complaints may be qualified as
credible and sufficiently serious.
- It
is also noted that responsibility for the above grievances was
attributed to the State, given that the applicant, who was a convict
serving a prison term, was held in a prison hospital run by the
State.
- The
Court observes, and it is not in dispute, that the applicant was
provided with adequate medical care for his tuberculosis, which was
the main reason for his admission to the prison hospital in July
2006. Nevertheless, it appears that this treatment gave no
significant positive result and that the applicant’s state of
health progressively deteriorated. This inevitably affected other
aspects of his health and the treatment to be prescribed.
- In
September 2007, after more than one year of confinement in the
hospital, the applicant’s lawyer lodged a complaint in which he
raised a number of specific issues pertaining to the alleged lack or
inadequacy of medical care, also providing a detailed account of the
allegedly degrading conditions of confinement in the hospital.
Counsel sought to have a prosecutor ordered to take action under the
Prosecutors Act to remedy the above grievances (see paragraphs 43 and
59 above).
- By
domestic standards, the applicant’s allegations appeared prima
facie credible, and an inquiry under the Prosecutors Act was ordered.
This initial inquiry, which was completed within one month, concluded
that no action was required. As subsequently acknowledged by the
national court, this inquiry had not been thorough because, amongst
other reasons, the applicant’s medical records had not been
assessed, no medical expert had been appointed and the applicant and
his counsel had not been heard (see paragraph 44 above). After a new
refusal to take action, the national court again considered that the
proper examination of the complaint of inadequate health care in
detention required that an expert opinion should be sought outside
the prison system. The national court pointed out that the recent
refusal had not contained an assessment of the applicant’s
complaints concerning his chest and heart pain and the authorities’
failure to arrange for the applicant to have a consultation with a
cardiologist and an ECG (see paragraph 46 above).
- In
March and April 2009 the national authorities obtained two medical
reports concerning the applicant’s medical conditions and
medical care provided to him. While upholding in general the
treatment provided to the applicant, one of the reports concluded
that no cervical spine MRI scan had been carried out, despite a
recommendation that one should be conducted after computer X-ray
imaging; no consultation by a neurosurgeon had been arranged; no
thioctic acid based medicine had been prescribed (see paragraphs 47
and 48 above).
- These
reports served as a basis for a new decision to refuse to order any
action on the part of the prosecutor. The prosecutor also examined a
number of relevant medical documents, interviewed the applicant, his
lawyer, and a number of public officials and detainees. Subsequently,
the national courts at two levels of jurisdiction upheld the refusal
on judicial review (see paragraphs 50-53 above).
- The
Court reiterates that its task is to determine whether the
circumstances of a given case disclose a violation of the Convention
in respect of an applicant, rather than to assess in abstracto
national legislation of the respondent State, its regulatory schemes
or the complaints procedure used by an applicant. Thus, mere
reference to the domestic compliance with such legislation or
schemes, for instance as regards licensing of medical institutions or
qualifications of medical professionals, does not suffice to oppose
an alleged violation of Article 3 of the Convention. It is
fundamental that the national authorities dealing with such an
allegation apply the standards which are in conformity with the
Convention principles as interpreted by the Court (see paragraphs 77-83
above).
- It
has not been argued that the applicant omitted to raise in substance
in the domestic proceedings certain specific complaints concerning
his medical conditions. Thus, it is assumed that the domestic
authorities, including the courts, should have dealt with the
substance of such complaints, making relevant findings of fact and of
law. However, it does not follow from the material available to the
Court or from the Government’s own submissions before it that
the applicant’s complaints concerning his eyesight and dental
treatment were dealt with. In fact, the respondent Government centred
their submissions on the tuberculosis-related matters. In the absence
of a proper explanation from the respondent Government, the Court is
inclined to give credence to the applicant’s submission that he
required medical care in relation to the aforementioned medical
conditions and that no adequate medical care was provided to him.
- Between
2006 and 2009 a number of neurologists made various recommendations
in relation to the applicant’s myelopathy, after having
examined the applicant and/or his medical file (see paragraphs 8-14
above). The applicant contended that he had not received any specific
treatment (for instance, medication or physiotherapeutic procedures)
in relation to his myelopathy. The Government provided no convincing
evidence which could confirm that the applicant had refused to take
any medicine prescribed for that illness or that the doctors’
recommendations were complied with. For instance, it has not been
specified what acts of medical care were performed in relation to the
applicant’s myelopathy from September 2006 to February 2007.
- In
addition, neither at the domestic level nor before the Court did the
Russian authorities assess the findings of the two expert reports
stating that: no cervical spine MRI scan had been carried out,
despite a recommendation that one should be conducted after computer
X ray imaging; no consultation by a neurosurgeon had been
arranged; no thioctic acid based medicine had been prescribed (see
paragraphs 47 and 48 above). The Court is not ready to dismiss these
findings as minor or clearly incapable of affecting the adequacy of
the health care provided to the applicant.
- The
respondent Government also submitted another medical report dated
21 December 2009 issued by the detention facility which was in
charge of the medical care at issue in the present case (see
paragraph 29 above). While the fact that experts are employed by one
of the parties to domestic proceedings may give rise to apprehension
as to the neutrality of the experts, what is decisive are the
positions taken by the experts throughout the proceedings, the manner
in which they perform their functions and the way the courts assess
the expert opinion. An opinion given by a court-appointed expert is
likely to carry significant weight in the judicial assessment of the
issues within that expert’s competence (see, albeit in the
context of Article 6 of the Convention, Shulepova v. Russia,
no. 34449/03, § 62, 11 December 2008). In the
Court’s view, the available reports in the present case do not
effectively disprove the applicant’s allegations.
- Also,
while noting that the applicant was able to benefit from legal
representation and that the national courts acknowledged a number of
shortcomings in the course of the domestic inquiry, the Court
observes with concern that this inquiry spanned over two years, which
is worrisome when an individual’s current and serious medical
conditions and medical care are at issue (see X v. France, 31
March 1992, §§ 31-49, Series A no. 234 C).
Indeed, the applicant’s medical conditions evolved over time
during the inquiry, thus making each delay an additional factor
contributing to the complexity of the issues to be determined.
- The
Court’s findings in the preceding paragraphs concerning the
assessment of the applicant’s medical care at the domestic
level make it unnecessary to make any further findings in relation to
the applicant’s arguments about the alleged ineffectiveness of
the inquiries carried out in the present case.
- In
view of the available material, the Court is not satisfied that the
applicant was provided with adequate medical care between January and
June 2009 (see paragraph 27 above). None of the available medical
reports gives any adequate assessment of the applicant’s
medical care in respect of this period of time after the formal
discharge of the applicant from the hospital.
- While
it is true that the Court was provided with a typed copy of the
applicant’s medical file, the Court is struck by the unspecific
and summary nature of the respondent Government’s observations
in the present case, which sits ill with the specific and detailed
nature of the grievances raised by the applicant and the gravity of
his medical conditions, as recorded in his medical file.
- In
view of the foregoing, the Court concludes that there has been a
violation of Article 3 of the Convention in relation to the
applicant’s health care from July 2006 to June 2009.
- Having
reached the above conclusion, the Court does not need in the present
case to make separate findings concerning the material conditions of
the applicant’s confinement in the medical facility.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 150,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered that the claim was excessive and that a finding
of a violation would suffice.
- The
Court observes that it is undeniable that the applicant must have
suffered physical pain and mental anguish in relation to his serious
medical conditions. It should also be accepted that he must have
suffered distress, frustration and anxiety related to his inadequate
health care. Having regard to the nature of the violation, the Court
awards the applicant EUR 9,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 10,000 for lawyers’ fees incurred
before the Court.
- The
Government submitted that there was no proof of payment of this sum
to the applicant’s lawyers.
- 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. The respondent Government have not argued
that the legal assistance agreement between the applicant and his
lawyers was not enforceable under Russian law or that the applicant
was not under a contractual obligation to pay the fees agreed (see,
for comparison, Flux v. Moldova (no. 2), no. 31001/03, §
60, 3 July 2007, and Salmanov v. Russia, no. 3522/04,
§ 98, 31 July 2008). Regard being had to the documents in its
possession and to the above criteria, the Court finds it reasonable
to award the applicant EUR 5,000, plus any tax that may be chargeable
to him thereon.
C. Default interest
- 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
- Declares unanimously the application admissible;
- Holds by five votes to two that there has been a
violation of Article 3 of the Convention in respect of the
applicant’s health care from July 2006 to June 2009;
- Holds by five votes to two that there is no need
to examine the complaints concerning the conditions of detention;
- Holds by five votes to two
(a) that
the respondent State is to pay the applicant,
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
Russian roubles at the rate applicable at the date of settlement:
(i) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
5,000 (five thousand 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;
- Dismisses unanimously the
remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Lorenzen and Møse is annexed to this judgment.
N.V.
S.N.
JOINT DISSENTING OPINION OF JUDGES LORENZEN AND MØSE
In
our view, the Court should attach particular importance to the
existence of domestic inquiries and judicial proceedings, which ended
with the judgment of 3 August 2009, as upheld on appeal (see
paragraphs 43 to 53 of the judgment). The national authorities
assessed the applicant’s medical records and obtained
testimonies and medical opinions. The applicant, who was represented,
was afforded an adequate opportunity to present his arguments and
evidence, as well as to contest the other party’s submissions,
in adversarial proceedings. It appears that the applicant and his
counsel had access to the relevant documents, including the
applicant’s medical records, necessary for substantiating their
allegations. The applicant’s grievances relating to the
effectiveness of the domestic inquiries are not convincing.
Although
it is regrettable that the inquiry took nearly two years, we find no
sufficient reason to depart from the factual findings made by the
domestic authorities, as confirmed on judicial review, concerning the
various aspects of the applicant’s complaints about his health
care.
In
particular, it has not been convincingly established that any alleged
failure to carry out specific treatment or make arrangements for
consulting specialist medical professionals, including between late
December 2008 and the applicant’s transfer to another detention
facility, was contrary to any previous medical prescriptions or –
more generally – led to treatment below an adequate standard.
In this context, it should be taken into account that the applicant
had a variety of different health problems, including tuberculosis
and a chronic and progressing neurological disease which inevitably
affected other aspects of his health; that the authorities provided
medical care on numerous occasions; and that he on occasions refused
to take the necessary medication (see paragraphs 18, 28-30 and
57-58).
It is
true that two medical reports indicated that no cervical spine MRI
scan had been carried out, despite a recommendation that one should
be conducted after computer X-ray imaging; no consultation by a
neurosurgeon had been arranged; and no thioctic acid based medicine
had been prescribed. But we are not convinced that the fact that
these recommendations were not followed up affected the adequacy of
the health care provided to the applicant to such an extent that it
amounted to ill-treatment within the meaning of Article 3 of the
Convention.
We
therefore conclude that there has been no violation of Article 3 in
relation to the health care provided to the applicant from July 2006
to June 2009.
Turning
to the material conditions in the hospital, we note that also these
submissions by the applicant were duly assessed at the domestic
level. The applicant, who was assisted by a lawyer at the domestic
level and before the Court, has not put forward convincing arguments
which lead us to disagree with the domestic courts’ assessment.
Consequently, there was also no breach of Article 3 with respect to
the material conditions in the hospital.
