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FIRST
SECTION
CASE OF AKHMETOV v. RUSSIA
(Application
no. 37463/04)
JUDGMENT
STRASBOURG
1 April
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 Akhmetov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach,
Deputy Section
Registrar,
Having
deliberated in private on 11 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37463/04) 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 Rafik Khamidullovich
Akhmetov (“the applicant”), on 12 July 2004.
- The
applicant was represented by Mr R. Khashimov, a lawyer practising in
Chelyabinsk. The Russian Government (“the Government”)
were represented by Ms V. Milinchuk, former Representative of the
Russian Federation before the European Court of Human Rights.
- The
applicant alleged, in particular, that he did not receive adequate
medical treatment in detention.
- On
12 February 2007 the Court decided to apply
Rule 41 of the Rules of Court and to grant priority treatment to
the application.
- On
26 March 2007 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 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having
considered the Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Chelyabinsk.
A. The applicant's sentence and detention
- In
1996 the applicant was detained in connection with criminal
proceedings instituted against him and placed in remand prison
IZ-70/3 in the Chelyabinsk Region.
- On
30 December 1998 the Chelyabinsk Regional Court found the applicant,
who had previous convictions, guilty of a number of criminal
offences, including banditry, kidnapping and unlawful use of weapons.
He was sentenced to the death penalty and to confiscation of
property.
- Between
14 December 1999 and 26 April 2000 the applicant was held in remand
prison IZ-77/2 in Moscow pending the examination of his appeal.
- On
28 February 2000 the Supreme Court of the Russian Federation altered
the sentence, commuting the death penalty to fifteen years'
imprisonment, ten years of which to be served in a prison and five
years in a correctional facility.
- From
10 May 2000 until an unspecified date in 2006 the applicant was held
in prison YaV-48/T-1, Chelyabinsk Region (учреждение
ЯВ-48/Т-1
по Челябинской
области).
- On
an unspecified date in 2006 the applicant was transferred to prison
no. T-2 in the Vladimir Region.
- On
29 February 2007 the Metallurgicheskiy District Court of Chelyabinsk
reviewed the sentence. Under the revised sentence, the applicant was
to serve the entire term of his imprisonment in a correctional
facility.
B. The applicant's illness and the medical treatment
provided
- Since
1993 the applicant has suffered from a cavernous haemangioma of the
right parietotemporal area.
- In
1995 the applicant underwent examination and carotid ligation in the
Microvascular Surgery Centre at Chelyabinsk Regional Hospital no. 1.
- Following
the applicant's placement in remand prison IZ-70/3 in 1996, he was
examined by the prison doctors in connection with his complaints
concerning the growth of the tumour and occasional haemorrhages of
the tumour and the right auricle. The doctors subsequently applied
antiseptic dressings and haemostatic medicines.
- During
the applicant's detention in remand prison IZ-77/2, Moscow, from 14
December 1999 to 26 April 2000 he was regularly examined by the
prison doctors.
- On
10 May 2000, following the applicant's transfer to prison YaV-48/T-1,
he was examined by the deputy head of the prison medical unit. He was
diagnosed with cavernous haemangioma of the head and right auricle
and aseptic dressings were applied regularly.
- On
24 May and 20 August 2000 the applicant was placed in the surgical
department of penitentiary hospital IK-3. There he was examined by a
neurosurgeon and oncologist and diagnosed with a cavernous
haemangioma of the right temporal and parotid area involving the
right auricle.
- On
19 November 2000 the applicant was placed in penitentiary hospital
IK-3 for surgery. On 14 December 2000 he underwent ligation of the
occipital artery and of branches of the carotid artery with a view to
reducing the blood supply to the tumour. A short-term improvement was
observed after the surgery: the tumour decreased in size and the
sores epithelised. The applicant was discharged from hospital on
15 January 2001 in a satisfactory state.
- On
11 June 2001 the applicant was against placed in the surgical
department of penitentiary hospital IK-3 on account of a growth in
the tumour. There he was examined by M., microsurgeon of the
Microvascular Surgery Centre at Chelyabinsk Regional Hospital no. 1,
who had operated on the applicant in 1995 and 2000, with a view to
determining the prospects for radical surgery. M. stated that, taking
into account the previous surgeries, excision of the haemangioma,
ligation of the nutrient stem and subsequent plastic surgery for the
injury to the skull was recommended. Angiography and magnetic
resonance tomography
were also recommended.
- On
8 October 2001 the applicant underwent tomography in Chelyabinsk
Regional Hospital no. 1, since it was not possible to carry this out
in penitentiary hospital IK-3. According to the angiosurgeon, the
results of the tomography were not conclusive and angiography with
intracranial vascular opacification was required.
- On
25 October 2001 prison YaV-48/T-1 requested the Ministry of Justice
to grant permission for the applicant's transfer with a view to
providing him with the medical aid required.
- On
19 February 2002 the Ministry of Justice granted permission to
transfer the applicant to detention facility US-20/12 in St
Petersburg. On 21 February 2002 the relevant instruction was
sent to prison YaV-48/T-1.
- From
15 April to 8 May 2002 the applicant was placed in facility US-20/12
in St Petersburg, where he was examined by E., an
otolaryngologist-oncologist. The applicant was diagnosed with
haemangioma of the right temporal and parietal areas and recurrent
arrosive haemorrhages from the right auricle, which were
life-threatening. It was recommended that he undergo radical removal
of the tumour, with simultaneous plastic surgery of the injury and
embolization of the vessels, in an oncological centre specialising in
head and neck tumours.
- According
to the doctors of facility US-20/12, such treatment was not possible
within the penitentiary system. They stated that an examination
should be carried out by the Special Medical Commission (SMK) with a
view to deciding on the applicant's possible release in connection
with his state of health.
- Between
30 July and 10 October 2002 the applicant was placed in the surgical
department of penitentiary hospital IK-3 in Chelyabinsk, where he
underwent medical examinations prior to the meeting of the SMK. The
relevant medical record, no. 2388/618, stated as follows:
“Diagnosis established by the referring medical
institution: cirsoid haemangioma of the right parietotemporal area...
31 July 2002...
Diagnosis upon discharge [from the hospital]: cavernous
haemangioma affecting the right parietotemporal area and the right
auricle. 16 September 2002...”
- On
22 August 2002 the applicant was examined by surgeon K., Doctor of
Medicine, Head of the Centre for Plastic and Aesthetic Surgery
Plastes. After examining the applicant, she stated as follows:
“Complaints concerning a tumour in the right
parietotemporal area and the right auricle. According to the patient,
the tumour appeared in 1993 and has been growing slowly. In 1995 he
underwent surgery in the microsurgery department of Chelyabinsk
Regional Clinical Hospital no. 1 (ЧОКБ
№1); the external carotid artery was ligated on the right
side. In 1996, after trauma to the soft tissues of the head, he noted
continued growth of the tumour. [The patient] was examined in 2001.
He underwent computer tomography of the brain...
Conclusion: the patient has vascular malformation of the
soft tissue of the right parietotemporal and parotid areas involving
the right auricle (cavernous haemangioma). The illness does not fall
within the category of cancerous tumours and is not of immediate
danger to the patient's life. The non-abundant haemorrhages stop
without assistance. [Surgery] is not possible in the surgery
department of YaV-48/3 [hospital]. Radical ablation of the growth,
with simultaneous plastic surgery to the soft tissues injury using an
advanced flap, is possible only in specialised departments.”
- On
20 September 2002 the applicant was examined by the SMK, which
concluded that, having regard to the list of illnesses that could
serve as a basis for early release from serving one's sentence, the
applicant was not entitled to such release. The report of the
examination stated:
“Complaints: a tumour in the right temporal and
parietal areas spreading to the right auricle.
Anamnesis: ...The patient notes ... that the haemangioma
on the right side appeared in 1993. In 1995 [he] underwent surgery in
OKB no. 1 [hospital] [ОКБ
№ 1], and the external carotid artery was ligated on the
right side. After surgery the tumour diminished somewhat. Rapid
growth of the tumour, ulceration of the upper segment of the auricle
and frequent haemorrhages from that area in 1996. On 19 November 2000
[he was] placed in the surgery department of the YaV-48/3 hospital.
Ligation of the cervical branch of the temporal artery on
14 December 2000 – insignificant effect... In
agreement with the medical unit of [the penitentiary service] he was
placed in institution US-20/12 (Ус
20/12) between 15 April and 8 May 2002 with the diagnosis:
cavernous haemangioma of the right parietotemporal area, recurrent
arrosive haemorrhages from the right auricle affected by the tumour,
threatening the patient's life. Recommended: ablation of the tumour
with simultaneous plastic surgery in an oncocentre by oncologist
[E.]. Such treatment is not feasible in the penitentiary system's
facilities.. ...
Examination by Z., the senior external surgeon of the
medical unit [of the Chelyabinsk Region penitentiary service]: taking
into account the anamnesis, the tumour has been growing slowly over
the past seven years. No changes in bone tissue, no possibility of
taking material for histological study on account of the risk of
haemorrhage and impossibility of stopping it in the given
circumstances, no changes in lungs, brain; the tumour is benign.
Diagnosis: vascular malformation of soft tissues of the right
parietotemporal and parotid areas involving the right auricle. No
threat to life...
Final diagnosis: vascular malformation of soft tissue of
the right parietotemporal and parotid areas involving the right
auricle.”
- On
21 October 2002, after the applicant's return to prison YaV-48/T-1,
he was examined by a regional medical-social commission. The
commission decided not to grant him the status of a disabled person.
- It
appears that between 2 and 28 January 2003 the applicant was again
placed in a penitentiary hospital. Medical record no. 372/76 stated:
“...28 January 2003. Diagnosis upon discharge
[from the hospital]: ...vascular malformation of the parietal and
temporal areas, of the right auricle.”
- On
2 February 2003 the applicant was examined by K, Head of the
Department of Maxillofacial Surgery of Chelyabinsk Town Clinical
Hospital no. 3. The report of the examination stated:
“Complaints about a tumour in the right temporal,
parotid and cervical [areas] and the auricle. There is progressive
tumour growth: the tumour currently measures 15x14 centimetres,
protrudes from the surface of the skin and pierces it with a vascular
figure. Auscultation creates noise in the parotid and temporal
[areas]... In the auricle area there are zones of necrosis...
Diagnosis: vast haemangioma... of the right temporal,
parotid and parietal areas and the auricle.
Surgery is not recommended because of the high risk to
life. Sclerotherapy (SHF, X-ray therapy) is recommended...”
- On
14 March 2003 the administration of prison YaV-48/T-1 requested the
Ministry of Justice to assist with the applicant's treatment, since
there were no facilities for X-ray therapy in the prison.
- On
29 April 2003 the Ministry of Justice replied that the administration
of prison YaV-48/T-1 should apply with a request for the applicant's
transfer to penitentiary hospital OZh-118/5 in Voronezh. The prison
authorities applied for such a transfer.
- On
25 August 2003 hospital OZh-118/5 in Voronezh refused the request on
the ground that it had no specialists qualified for the treatment of
the applicant's condition. On the same date the prison authorities
again requested the Ministry of Justice to assist with the
applicant's treatment by SHF and X-ray therapy.
- On
18 September 2003 the administration of prison YaV-48/T-1 received an
order on the applicant's transfer to facility US-20/12 in St
Petersburg. On 19 October 2003 the applicant left for the facility.
- The
applicant was placed in inter-regional penitentiary hospital IK-12
(MOB) from 24 November 2003 to 7 January 2004. He underwent a biopsy
and was examined by a panel consisting of the head of the hospital,
the deputy head of the medical department, the deputy head of the
surgical department and the head of the otolaryngological department.
The applicant was also examined by Sh., the head of the neurological
department of Town Hospital no. 2, and E, an oncologist. According to
the panel's report, treatment of the applicant's condition was not
possible in hospital IK-12 (MOB). The applicant was discharged in a
satisfactory state and supervision by a maxillofacial surgeon was
recommended.
- Following
the applicant's return to prison YaV-48/T-1 on 26 February 2004
he complained about occasional haemorrhages and pains. He received
treatment consisting of dressings with haemostatic sponges and
analgesics.
- On
27 March 2004 the applicant was examined by plastic surgeon M. and
stomatologist F. They reached the following conclusions:
“The patient has vascular malformation of the soft
tissue of the right temporal and parietal areas and the ear with
ulceration. There is a risk of profuse bleeding. Angiography is
necessary. It will be possible to decide whether surgical treatment
is possible only after the angiography.”
- From
8 April to 2 June 2004 the applicant was placed for examination in
penitentiary hospital YaV-48/3. He was discharged in a satisfactory
state.
- After
the applicant's return to prison YaV-48/T-1 on 8 June 2004 he was
examined by the prison doctor every day.
- According
to the Government, on 18 June 2004 the applicant, who was trying to
avoid placement in a disciplinary cell, caused himself injuries in
the area of the tumour; this resulted in profuse bleeding. He was
urgently placed in a surgical department of the Verkhneuralsk Central
District Hospital. There he underwent haemostatic therapy and on 21
June 2004 he was discharged in a satisfactory condition. During the
subsequent period of his detention in prison YaV-48/T-1 minor
haemorrhages occurred; these were stopped by dressings.
- On
13 July 2004 the applicant was again placed in the surgical
department of penitentiary hospital IK-3 for examination with a view
to determining subsequent treatment.
- On
5 August 2004 the applicant underwent angioarteriography of the
vessels of the head.
- On
11 August 2004 the applicant was examined by M., a plastic surgeon,
and O., the head of the vessel surgery department of Chelyabinsk
Regional Hospital no. 1. They stated, in particular:
“The patient has evident pathology of intracranial
sections of the right and left vertebral arteries feeding the
pathological centre (malformation). Ligation of the vertebral
arteries is impossible because of the high risk of truncal stroke.
Excision of the vascular tumour and plastic surgery is impossible
because of its very big size and feeding by intracranial sections.
Palliative therapy is recommended.”
- On
18 August 2004 the applicant was examined by radiologist K., who
stated:
“The patient has vast cavernous haemangioma of the
right parietotemporal area spreading to the auricle and neck. There
is vast ulceration with decomposition. Branches of the external
carotid artery were previously ligated. Taking into account the
amplitude of the lesion and decomposition effects, radiotherapy for
sclerosing is not recommended.”
- On
24 August 2004 the applicant was discharged from the hospital in a
satisfactory state. Palliative treatment was recommended (antiseptic
dressings, haemostimulating therapy and, in the event of
haemorrhages, haemostatic therapy). He was also referred for
examination by the medical-social commission. The medical unit of
prison YaV-48/T-1 complied with the recommendations. The applicant
was regularly examined by the unit doctors and received dressings.
- On
20 October 2005 the applicant was placed in Regional Somatic Hospital
no. IK-3 for haemostatic therapy and examination by the
medical-social commission. He was granted category-3 disability
status.
- On
24 October 2005 the applicant was discharged from the hospital in a
satisfactory state. In prison YaV-48/T-1 he continued to receive
symptomatic therapy and antiseptic dressings.
- On
25 November 2004 professor D., Department of Vascular Surgery of the
Vishnevsky Institute of Surgery, issued a medical opinion on the
basis of the results of the angiography:
“From the results of the angiography it follows
that the main source of blood supply for the [affected] zone is the
basin of the vertebral artery through intracranial vessels.
Therefore, any interference ... is connected with an extremely high
risk of neurological complications (haemorrhagic or ischemic stroke)
and can be performed only in highly specialised neurosurgical
institutions. Radical surgical treatment with ablation of all the
affected areas is impossible because of the amplitude of the lesion.
It is recommended that the patient be supervised by a surgeon and, in
case of haemorrhage, stitching of angiomatous tissues.”
- On
30 January 2006, upon studying the applicant's medical file, the
Moscow State Medical-Stomatological University refused to accept him
for treatment.
- On
15 February 2006 the Ministry of Justice informed the administration
of prison YaV-48/T-1 that the applicant could be placed for treatment
in the Krasnoyarsk Regional Hospital. The prison administration
requested an order for his transfer.
- On
20 May 2006 the Ministry of Justice replied that the order could be
granted only upon confirmation from the Krasnoyarsk Regional Hospital
that it would accept the applicant for treatment.
- On
14 July 2006 the Krasnoyarsk Regional Hospital replied that it could
not accept the applicant since it did not have the technical
facilities for the treatment required.
- From
26 October 2006 to 20 March 2007 the applicant underwent treatment
for tuberculosis in penitentiary hospital IK-3.
- On
27 February 2007 the Tyumen Regional Hospital informed the
penitentiary authorities, in reply to their request, that it could
not provide treatment to the applicant given the absence of the
necessary technical facilities.
- Following
the applicant's transfer to prison no. T-2 in the Vladimir Region, he
was placed in the surgical department of the penitentiary hospital.
On 1 February 2008 he was examined by an oncologist, who diagnosed
him with a giant cavernous haemangioma of the head and stated that
surgical treatment was not recommended because of the extent of the
propagation of the tumour. He recommended symptomatic treatment only.
- On
13 March 2008 the applicant was again examined by the medical-social
commission, which granted him category-2 disability status.
C. Complaints and applications for medical treatment
lodged by the applicant and his wife on his behalf
- In
2003 the applicant applied to a court seeking to have the failure to
provide him with adequate medical aid in prison declared unlawful. He
also asked the court to order his placement in the Chelyabinsk
Oncological Centre for treatment.
- On
16 September 2003 the Tsentralniy District Court of Chelyabinsk
dismissed the claim. The court found that the following medical aid
was provided to the applicant during his imprisonment: between 28
February and 10 May 2000 – examination by doctors and
conservative treatment; between 24 May and 20 August 2000 –
placement in the surgery department of YaV-48/3 (ЯВ
48/3) hospital for convicts, Chelyabinsk, consultations with a
neurosurgeon and oncologist; 19 November 2000 – placement in
the YaV-48/3 hospital for another elective operation conducted on
14 December 2000; between 11 June and 4 December 2001 –
placement in YaV-48/3 hospital, computer tomography conducted on
8 October 2001; between 15 April and 8 May 2002 - treatment and
consultations by doctors in institution US-20/12, St Petersburg
(учреждение
УС-20/12 ГУИН
по Ст.-Петербургу
и Ленинградской
области);
between 30 July and 10 October 2002 – placement in the
surgery department of YaV-48/3 hospital; 22 August 2002 –
consultation by the Department Head of the Plastes (Пластэс)
centre; 20 September 2002 – an examination by a special medical
commission (СМК);
1 October 2002 – a medico-social examination (МСЭ)
in Magnitogorsk; 26 January 2003 – placement in the YaV-48/3
hospital; 3 February 2003 – consultation by the head of
Chelyabinsk hospital no. 3 (ЧЛХО
МУ 3 «ГКБ
№ 3 г.
Челябинска).
The court held that the medical aid provided had been sufficient. The
applicant appealed.
- On
20 November 2003 the Chelyabinsk Regional Court upheld the judgment
on appeal.
- On
3 March 2004 the Deputy Head of Hospital IK-12 (ИК-12)
of the Main Department for the Execution of Sentences replied to a
query by the applicant's wife:
“In reply to your request... I inform you that
[the applicant] was placed in [IK-12 hospital] between 24 November
2003 and 19 January 2004 with the diagnosis: racemose haemangioma of
the right parietal area, the right auricle and the right half of the
neck. Recurrent arrosive haemorrhages threaten the patient's life.
Surgical treatment is not feasible in [the penitentiary
system's] facilities. Progressive growth of the tumour is possible in
the absence of treatment. Out-patient supervision has been
recommended... The possibility of a fatal outcome in the event of
trauma to [the area of the haemangioma] is very high. It is possible
to stop haemorrhage only in specialised surgical in-patient
facilities. Branches of the external carotid artery are involved in
the tumour.”
- On
14 November 2005 the Deputy Head of the Medical Department of the
Federal Service for the Execution of Sentences replied to the
applicant's wife:
“...Surgical treatment of [the applicant] in
Moscow institutions is not possible. The decision with regard to
surgical treatment of [the applicant] can be taken after he has been
examined in the place where he is serving his sentence.”
- On
15 February 2006 the First Deputy Head of the Medical Department of
the Federal Service for the Execution of Sentences replied to the
applicant's wife:
“The Federal Service for the Execution of
Sentences examined your request concerning the transfer of your
husband ... who is serving his sentence in ... the Chelyabinsk Region
to Moscow for specialised medical treatment.
[Your husband's] illness is subject to elective
operative treatment and requires high-technology (expensive) medical
aid. The procedure for providing such aid to patients held in
institutions of the Federal Service for the Execution of Sentences is
not established by the federal executive authority responsible for
the legal regulation of health protection and social development.
Since the legislation requires [the patient's] voluntary
informed consent to medical interference, it follows that only your
husband ... may apply for such treatment. If he gives his written
consent for the transfer and medical intervention, he can be
transferred to the regional hospital for convicts ... of the
Krasnoyarsk Region, where there are technical facilities for the
provision of the required additional medical aid (endovascular
surgical intervention and plastic surgery, provided participation of
external specialists from other medical institutions). The procedure
for providing additional medical aid to convicts is governed by the
internal regulations of correctional facilities.
The possibility of such treatment in the Burdenko
Institute of Neurosurgery or in the Hospital of Surgical Stomatology
and Maxillofacial Surgery ... is not provided by [relevant
regulations].”
- On
22 May 2006 the Chief Medical Officer of the Krasnoyarsk Regional
Hospital pertaining to the Federal Service for the Execution of
Sentences (ФГЛПУ
КТБ-1
ГУФСИН
России
по Красноярскому
краю)
replied to the request of the applicant's wife::
“In reply to your request concerning
hospitalisation of [the applicant] for in-patient treatment in [the
Krasnoyarsk Regional Hospital for convicts] and after having studied
the medical documents provided, we have to inform you that the
treatment, including surgical intervention, is not feasible in the
facilities of [the Krasnoyarsk Regional Hospital for convicts] even
with the assistance of external specialists from other medical
institutions, because of an absence of technical facilities for the
operation, diagnostics, control and treatment ... [and] of possible
post-operative complications which would be life-threatening for the
patient.”
- On
28 March 2008 the head of prison no. T-2 of the Vladimir Region
informed the applicant's wife of the applicant's placement in the
penitentiary hospital and the examination by an oncologist on
1 February 2008. The letter also stated that the
haemangioma only posed a threat to the applicant's life in the event
of haemorrhages from its vessels. However, during the period under
supervision there had been no such haemorrhages. At the same time the
haemangioma increased by 1-1.5 centimetres.
II. RELEVANT COUNCIL OF EUROPE DOCUMENTS
- The
relevant extracts from the General Reports by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) read as follows:
Extracts from the 3rd General Report [CPT/Inf (93)
12]
“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. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention about the
alleged lack of adequate medical treatment in prison YaV-48/T-1.
Article 3 of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument. They submitted that during his
detention the applicant had regularly undergone examinations and
treatment in penitentiary and civilian medical institutions. In
particular, he had undergone tomography and angiography in civilian
hospitals. He had been examined by the medical-social commission and
the SMK with a view to deciding on his early release on the basis of
his state of health. Furthermore, he had been examined by a number of
civilian doctors, including surgeons, oncologists, stomatologists and
a radiologist. Furthermore, the penitentiary authorities had taken
steps to arrange surgical treatment of the applicant's condition.
However, none of the medical institutions to which the authorities
had applied had agreed to perform the surgery, due to its complexity
and the risk to the applicant's life. The doctors who had examined
the applicant had not been prepared to conduct the surgery, nor had
they advised where such surgery could be performed. The doctors' and
hospitals' refusals to conduct the surgery was based on the
anatomic-physiological particularities of the blood supply to the
vascular tumour which had formed at the time of the tumour onset.
Given these particularities, radical treatment would be extremely
dangerous for the applicant's life. Accordingly, the authorities had
taken every measure to ensure adequate medical assistance for the
applicant; however, radical treatment had appeared impossible for
medical reasons.
- The
applicant disagreed with the Government's arguments. He stated that
it had been acknowledged on numerous occasions by the penitentiary
medical authorities themselves that adequate treatment of his
condition was impossible within the penitentiary system. In the
applicant's view, because of the authorities' failure to take prompt
measures to arrange radical treatment in a civilian hospital,
although he and his wife had repeatedly asked for his placement in a
civilian hospital at their own expense, his illness had become
irreversible and the surgery was no longer possible.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. General principles
- The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim's
behaviour (see, among other authorities, Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV). However, to fall under
Article 3 of the Convention, ill-treatment must attain a minimum
level of severity. The assessment of this minimum level of severity
is relative; it depends on all 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
Valašinas v. Lithuania, no. 44558/98, §§
100–101, ECHR 2001-VIII).
- The
Court has consistently stressed that the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment (see, as a recent authority, Labzov v.
Russia, no. 62208/00, § 42, 16 June 2005).
Measures depriving a person of his liberty may often involve such an
element. Nevertheless, under this provision 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
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 secured by, among other
things, providing him with the requisite medical assistance (see
Kudła v. Poland [GC], no. 30210/96, §§ 92-94,
ECHR 2000 XI).
2. Application in the present case
- The
Court observes that since 1993 the applicant has been suffering from
cavernous haemangioma of the head and the right auricle, a vascular
tumour which is a relatively rare medical condition. It requires
constant supervision and specialised medical treatment. In 1995 the
applicant underwent examination of the tumour and carotid ligation.
He was placed in detention in 1996, three years after having
developed the condition.
- The
Court notes that it is not alleged by the applicant that the
conservative treatment available to him in detention was
insufficient. It observes that while in custody he regularly not only
underwent examinations and treatment in penitentiary medical
facilities, but was also examined by a number of civilian doctors.
This included examination by surgeons, oncologists, a microsurgeon,
an angiosurgeon, an otolaryngologist, an otolaryngologist-oncologist,
a maxillofacial surgeon, a plastic surgeon, a vascular surgeon, a
stomatologist, a neuropathologist and a radiologist. Furthermore, he
was also placed in civilian hospitals for such specialised tests as
tomography and angiography. The subsequent treatment, which included
haemostatic therapy and antiseptic dressings, was provided in
accordance with the results of the tests and the doctors'
recommendations. The Court is therefore satisfied that adequate
conservative treatment was made available to the applicant in
custody.
- The
Court further observes that the main allegations raised by the
applicant concern the fact that in detention he was not provided with
radical treatment for the tumour. He argued, in particular, that
although it had been acknowledged on numerous occasions and by
various authorities that radical treatment was not feasible within
the penitentiary system, the prison authorities took no steps to
arrange such treatment in a civilian hospital, even at the
applicant's expense, which led to his condition becoming
irreversible. The Court thus has to establish whether the
penitentiary authorities took all necessary measures to ensure the
required treatment.
- The
Court notes that on 11 June 2001 microsurgeon M. recommended excision
of the haemangioma with prior tomography and angiography. Likewise,
during the applicant's placement in the facility US-20/12 in St
Petersburg between 15 April and 8 May 2002, radical removal of the
tumour was recommended. Following the first recommendation the
applicant underwent tomography on 8 October 2001 and, after his
placement in the facility US-20/12, a panel of the penitentiary
doctors found that the radical treatment was not possible within the
penitentiary system. In view of this conclusion the authorities began
to examine the possibility of the applicant being operated in a
civilian hospital. They first referred the applicant to the SMK for a
decision on early release on the basis of his state of health, which
would facilitate his surgery outside the penitentiary system.
However, on 20 September 2002 the SMK found that the applicant's
illness was not life-threatening and did not fall under the list of
illnesses that could serve as a basis for early release from serving
one's sentence.
- Subsequently
maxillofacial surgeon K., who examined the applicant on 2 February
2003, stated that surgery was not recommended because it would
threaten the applicant's life. Later plastic surgeon M., who examined
the applicant on 11 August 2004, and professor D., who in November
2004 studied the results of the angiography conducted on 5 August
2004, both stated that the radical treatment was impossible because
of the size of the tumour and its structure. At the same time the
penitentiary authorities continued investigating the possibility of
the radical removal of the tumour having contacted several civilian
hospitals, including medical institutions in Voronezh, Moscow and
Tyumen, between 2004 and 2007. However, all of them refused to accept
the applicant for treatment on the ground of lack of adequate
technical facilities and qualified personnel.
- The
Court reiterates that the CPT in its 3rd General Report (see
paragraph 68 above) stated that a prison's health care service should
be able to provide regular out-patient consultations and emergency
treatment. At the same time, prison doctors should be able to call
upon the services of specialists and the direct support of a
fully-equipped hospital service should be available, in either a
civil or prison hospital.
- The
Court observes that it is not in dispute by the parties that radical
treatment of the applicant's tumour was not possible within the
penitentiary system. However, having regard to the 3rd General Report
of the CPT cited in the preceding paragraph and the highly complex
nature of the applicant's condition, the Court does not consider that
this fact alone gives rise to issues under Article 3 of the
Convention. In the circumstances of the present case the question is
rather whether the authorities took sufficient steps to ensure
adequate treatment for the applicant, having recourse to facilities
outside the penitentiary system.
- The
Court notes that, having received the recommendations to conduct
radical treatment and having established that it was not possible
within the penitentiary system, the authorities referred the
applicant to the SMK seeking his early release due to his state of
health. It was only after the SMK's refusal that the authorities
started contacting civilian hospitals so as to investigate the
possibility of the radical treatment outside the penitentiary system.
All the hospitals they contacted refused to accept the applicant on
account of their being ill-equipped to conduct the required kind of
surgery.
- The
Court thus accepts that the authorities took steps aimed at providing
the applicant with radical treatment outside the penitentiary system.
However, in view of the particular circumstances of the present case,
it finds that those measures were not carried out with sufficient
expedition. Taking into account the particularly grave and complex
nature of the applicant's condition, the authorities should have been
mindful of the danger of it becoming irreversible due to the delay in
radical treatment. Therefore, they ought to have started to
investigate the possibility of treatment in a civilian hospital
shortly after having received the recommendation for such treatment
rather than awaiting for more than a year the outcome of the
examination by the SMK.
- The
Court thus finds that, in the special circumstances of the present
case, the authorities did not take sufficient measures to provide the
applicant with adequate medical assistance.
- Accordingly,
there has been a violation of Article 3 of the Convention.
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 75,000 euros (EUR) as compensation for the cost of
his future medical treatment as well as compensation for
non-pecuniary damage. He submitted neither calculations nor documents
in support of his claim for compensation of pecuniary damage. He did
not specify the amounts claimed in respect of each type of damages
either.
- The
Government argued that the claim for compensation of pecuniary damage
was unsubstantiated and that the amount claimed for compensation of
non-pecuniary damage was not specified.
- As
to the pecuniary damage allegedly caused, the Court reiterates that
there must be a clear causal connection between the damage claimed by
the applicant and the violation of the Convention (see Barberà,
Messegué and Jabardo v. Spain, judgment of 13 June 1994
(former Article 50), Series A no. 285-C, §§
16-20; see also Berktay v. Turkey, no. 22493/93, § 215,
1 March 2001). Furthermore, under Rule 60 of the Rules of Court
any claim for just satisfaction must be itemised and submitted in
writing together with the relevant supporting documents or vouchers,
“failing which the Chamber may reject the claim in whole or in
part”. The Court notes that the applicant submitted no
calculations, let alone documents, to support his claim for pecuniary
damage. Accordingly, the Court dismisses the claim in this part.
- As
regards non-pecuniary damage, the Court recalls that it found that
the applicant's rights guaranteed by Article 3 of the Convention had
been violated on account of the failure to provide him with adequate
medical treatment. That fact indisputably caused him physical and
mental suffering. The Court thus accepts that he has suffered
non-pecuniary damage which cannot be compensated for solely by the
finding of a violation. Ruling on an equitable basis, the Court
awards the applicant EUR 18,000 under this head, plus any tax that
may be chargeable.
B. Costs and expenses
- The
applicant has made no claim for the compensation of costs and
expenses. Accordingly, the Court makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest 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 the application admissible unanimously;
- Holds by five votes to two that there has been a
violation of Article 3 of the Convention;
- Holds by five votes to two
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 18,000
(eighteen thousand euros), plus any tax that may be chargeable, to be
converted into Russian roubles at the rate applicable at the date of
settlement, in respect of non-pecuniary damage;
(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 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, a dissenting opinion of Judge Jebens,
joined by judge Kovler, is annexed to this judgment.
C.L.R.
A.M.W.
DISSENTING OPINION OF JUDGE JEBENS,
JOINED BY JUDGE
KOVLER
I
respectfully disagree with the majority that there has been a
violation of Article 3 in this case, due to lack of adequate medical
assistance to the applicant. In my view, the authorities took all
steps that can be reasonably expected by them, in order to provide
the applicant with medical treatment.
-
The applicant alleges that radical treatment of his tumour became
impossible due to the authorities' failure to conduct such treatment
in good time. This is, in my opinion not supported by the facts of
the case. Though radical treatment was recommended in 2001 and 2002,
but was ruled out by the doctors in 2003 and 2004, it appears that
the different answers to this complex question were caused by
conflicting opinions by the doctors, not by the fact that too much
time had passed. I would like to note in this respect, firstly, that
a relatively short period of time elapsed between the last report
recommending surgery, issued in May 2002, and the first report not
recommending it, issued in February 2003. Though it is not
inconceivable that this period could have been critical for the
development of the applicant's condition, there are no medical
reports to support that argument. Secondly, the first report of 2001
only recommended radical treatment subject to the tomography and
angiography reports. The opinion of 27 March 2004 also stated
that a decision on the possibility of surgical treatment of the
tumour could only be made after angiography had been performed. The
reports of August and November 2004, which ruled out radical
treatment, were therefore based on more complete and accurate
information concerning the applicant's condition.
-
Given the complex and rare nature of the applicant's condition, it is
understandable that the methods for its treatment could be subject to
different medical opinions, especially in view of the results of
medical tests which were not available to the doctors who had
recommended radical treatment. Thus, the domestic authorities were
confronted with conflicting medical opinions as to the applicant's
treatment, of which the most recent one ruled out radical surgery.
The question to be discussed is whether the authorities took all
necessary steps in order to ensure that the applicant received
adequate treatment.
-
Having obtained medical opinions recommending surgery, the
authorities went on to arrange the tests prescribed by the doctors.
Furthermore, they convened a special medical council, the SMK, to
decide on the applicant's early release. The SMK found, however, that
the applicant's condition did not fall into the category of illnesses
that constituted grounds for such release. I have no reason to
contest this finding. Subsequently the authorities were presented
with medical opinions that stated that surgical treatment was not
recommended, because it posed a threat to the applicant's life.
However, even after these opinions were issued, the authorities
continued to take measures to investigate the feasibility of radical
treatment. They contacted several civilian medical institutions in
this regard, but all of them refused to accept the applicant for
treatment, due to lack of adequate technical facilities and qualified
staff.
-
Although the applicant argued that the authorities had refused to
place him in a civilian hospital for surgery, he did not present
documents containing the consent of a particular medical institution
to conduct such medical intervention. Furthermore, none of the
doctors who examined the applicant, including those who recommended
the radical treatment, provided any recommendations as to where it
could be conducted.
-
Concluding, I note firstly that the authorities provided the
applicant with numerous medical examinations and conducted
conservative treatment of his disease. Secondly, they took all
necessary steps which could realistically be expected, in order to
clarify whether the applicant could be given radical treatment, and
to facilitate it practically. The authorities acted adequately and
with reasonable speediness. I therefore find it untenable to conclude
that there has been a violation of Article 3.
