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FIRST
SECTION
CASE OF GEPPA v. RUSSIA
(Application
no. 8532/06)
JUDGMENT
STRASBOURG
3 February
2011
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 Geppa 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 Søren Nielsen,
Section Registrar,
Having
deliberated in private on 13 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8532/06) 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, Ms Valentina Petrovna Geppa
(“the applicant”), on 30 December 2005.
- The
applicant was represented by Ms G.V. Zambrovskaya, a lawyer
practising in Kursk. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged that the authorities were responsible for the death
of her son in a correctional colony and that there had been no
effective investigation of the circumstances of his death.
- On
6 November 2009 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant lives in Kursk. She is the mother of Yevgeniy Geppa, born
in 1974 and deceased in 2004 while serving his prison sentence.
A. The events prior to Yevgeniy Geppa’s death
- On
19 November 1998 Yevgeniy Geppa was found guilty of organised violent
robbery and, following appeal proceedings before the Kursk Regional
Court which ended on 10 February 1999, was sentenced to eight years
of imprisonment in a high-security penitentiary facility. He was sent
to serve his sentence in IK-2 in Kosinovo, Kursk Region.
- In the periods from 17 to 31 August 2000 and from 10 to
29 July 2003 he was transferred to the hospital of the Penitentiary
Department in Kursk for treatment for chronic pyelonephritis of his
only kidney in the active phase.
- On
28 January 2004 he was transferred to the same hospital, having been
diagnosed with a psychiatric disorder, namely, “past organic
brain lesion of complex origin” (owing to a head injury and
drug abuse), with emotional instability and compensatory behaviour.
It was noted that his medical history included a reference to
epileptic syndrome.
- On
20 May 2004, following changes introduced to the Criminal Code, the
Kursk Regional Court reduced the applicant’s prison sentence to
seven years and ordered it to be served in a facility of average
security level. Yevgeniy Geppa was therefore transferred to the Lgov
correctional colony OX-30/3 (учреждение
OX-30/3, hereafter “the colony”).
- In
June 2004 Yevgeniy Geppa’s wife received a letter from him. His
distorted handwriting, repetitive use of words and confused language
made her suspect that he was unwell.
- On
5 August 2004 the applicant and Yevgeniy Geppa’s wife visited
him in the colony. They found him very weak, pale and exhausted. He
had lost weight and had a blank expression. During the visit he
fainted and collapsed on the floor; according to the applicant, when
they pulled up his shirt they saw faded bruises of yellow-greenish
colour on his chest. They also saw clotted blood on his lips.
Yevgeniy Geppa told them afterwards that he was being beaten by the
colony officials because he had refused “to co-operate”,
that is, to systematically report on his fellow inmates. According to
the Government, Yevgeniy Geppa had an epileptic fit on that day and
his medical examination did not reveal any injuries.
- On
20 August 2004 the applicant wrote to the Kursk Regional Prosecutor’s
Office complaining that her son had been ill-treated at the colony,
referring to the incident of 5 August 2004 when he fainted during the
visit; she described the injuries they had allegedly found on his
chest and lips and also complained that he was not receiving medical
care. She contended that this had not happened in the previous
detention facility and had only started after her son’s
transfer to correctional colony OX-30/3. She requested that he be
transferred elsewhere.
- From 27 August 2004 to 18 September 2004 Yevgeniy
Geppa was transferred to the hospital of the Penitentiary Department
in Kursk for examination and treatment. He was diagnosed with a
psychiatric disorder, namely, “past organic brain lesion of
complex origin” (owing to a head injury and drug abuse), with
emotional instability and compensatory behaviour, and epileptic
syndrome. In addition, he was diagnosed with chronic pyelonephritis
of his only kidney at the stage of remission; it was recommended that
he be placed in the psychiatric hospital of Smolensk.
- In
the meantime, on 3 September 2004 the applicant received a reply from
the Kursk Regional Penitentiary Department of the Ministry of Justice
to the effect that the on-site inspection conducted following her
complaint had established that the conditions of her son’s
detention complied with the law and there were no grounds to transfer
him to another facility. It was also stated that he was provided with
medical care when necessary.
- On
17 October 2004 the applicant and Yevgeniy Geppa’s wife visited
him in the colony for the last time. According to the applicant, when
they met him he had had a fever and had been shivering despite being
dressed in a winter jacket and gloves. He had allegedly told them
that he had pain “all over inside” and splitting
headaches but that the colony medical staff had refused to see him
and had accused him of faking the illness. He had also allegedly told
them that he had requested a transfer to the psychiatric hospital of
the Penitentiary Department of the Smolensk Region (the psychiatric
hospital of Smolensk) because he could not bear the constant beatings
any longer. Before they said goodbye he had told them that he felt he
was dying and they would probably not see him again.
- On
18 October 2004 the applicant wrote to the Penitentiary Department
complaining that her son was being ill-treated at the colony. She
complained about the beatings, the deterioration of his health and
the lack of medical assistance. She requested that he be given a
medical examination to identify the cause of his headaches, stomach
and chest pains, and deteriorating eyesight. She also requested to
see his pre-transfer medical records from IK-2 and the colony medical
records relating to the period between 27 August and 16 September
2004.
- On
25 October 2004 the Penitentiary Department replied to the applicant
that her enquiry had been examined by its medical division. It
informed the applicant that Yevgeniy Geppa’s medical file at
the colony contained records on his past organic brain lesion of
complex origin (owing to a traumatic brain injury and drug abuse),
with emotional instability and compensatory behaviour, and epileptic
syndrome; he was also diagnosed with chronic pyelonephritis of his
only kidney at the stage of remission. It stated that he was
receiving the necessary medical care. When interviewed, Yevgeniy
Geppa had refused to be placed in the hospital of the Penitentiary
Department but had given his consent to be placed in the psychiatric
hospital of Smolensk. A similar letter was sent to her on 18 November
2004, adding that no physical force had been applied against Yevgeniy
Geppa and informing her of his transfer to the psychiatric hospital
of Smolensk.
- On
14 November 2004 Yevgeniy Geppa was taken to the psychiatric hospital
of Smolensk. On the way a stop was made at IZ-36/1 of Voronezh, where
he asked to see a doctor. The medical examination revealed several
symptoms of medium severity, such as a “confused state of
consciousness”. After he had been given medication his
condition improved, and he was sent on to Smolensk.
- On
20 November 2004 Yevgeniy Geppa arrived at the psychiatric hospital
of Smolensk. The medical examination conducted on his arrival
established that his condition was serious, he was unable to walk by
himself, was pale and his extremities were cold. He could communicate
with the doctor, but quickly became exhausted. Symptomatic treatment
began immediately and further examinations were ordered.
- On
22 November 2004 Yevgeniy Geppa had a general blood test. On the
following day he had a chest x-ray and an electrocardiogram. On
24 November 2004 he had an HIV test, which was negative.
- On
29 November 2004 Yevgeniy Geppa underwent an x-ray brain scan that
revealed hypertension. On the same day an electroencephalogram was
performed, and it was concluded that there was probably a
pathological formation in the left hemisphere. He also had a stomach
x-ray on that day.
- On
30 November 2004 he had a general ultrasound abdominal scan that
revealed some changes in the liver and pancreas. On the same day he
was seen by an infection specialist, who did not find any infection.
- On
1 December 2004 he was seen by a neurologist who ordered a brain CT
scan, which was performed on 6 December 2004 and confirmed the
presence of a formation in the left hemisphere. It was followed by a
consultation with a neurosurgeon, who advised against surgery. On the
following day an oncologist diagnosed Yevgeniy Geppa with a brain
tumour and oedema of the brain.
- On
8 December 2004 Yevgeniy Geppa died.
- On
9 December 2004 an autopsy, including a histological study, was
conducted and established that Yevgeniy Geppa’s death was
caused by a brain tumour (glioblastoma multiforme).
B. Inquiry into Yevgeniy Geppa’s death and
subsequent proceedings
- Following
Yevgeniy Geppa’s death the Smolensk Prosecutor’s Office
conducted an inquiry in order to decide whether there were grounds
for a criminal investigation. On 17 December 2004 it decided that no
criminal investigation was necessary. The decision referred to the
autopsy report, the medical file, and the statements of the hospital
director and detainee K., who was employed at the hospital.
- On
21 December 2004 the applicant complained to the Kursk Regional
Prosecutor’s Office about the beatings to which her son had
allegedly been subjected in the colony and alleged that there had
been a negligent failure to provide him with medical assistance; she
also alleged that his transfer to the psychiatric hospital had been
delayed without justification.
- On
27 January 2005 the prosecutor’s office decided that there were
no grounds to open a criminal investigation into Yevgeniy Geppa’s
death. The prosecutor’s office had questioned the colony
officials and inmates, who made the following statements:
–
the head officer of unit no. 12 where Yevgeniy Geppa was held stated
that he had not received any complaints that physical force had been
applied to Mr Geppa and had not seen any injuries on him;
–
inmate K. stated that upon his arrival at the colony Yevgeniy Geppa
had had certain health complaints, in particular he had mentioned
that he was suffering from epilepsy; he had not seen any injuries on
him and had not heard any complaints about the use of force against
him;
–
inmate Ch. stated that he had not seen any injuries on Yevgeniy Geppa
and had not heard any complaints about the use of force against him;
–
inmate Kh. stated that his sleeping place in the dormitory had been
next to Yevgeniy Geppa’s and that he had not seen any injuries
on him or heard any complaints about the use of force against him;
–
an officer of the visits and parcels section, M., stated that on 5
August 2004 Yevgeniy Geppa had been visited by his wife and mother
and that about thirty minutes into the visit he had had an epileptic
fit and had been taken to the medical unit; Yevgeniy Geppa’s
mother had not mentioned seeing any injuries on him;
–
an officer of the visits and parcels section, Kh., stated that on 5
August 2004 he had searched Yevgeniy Geppa before the visit, though
without removing his clothes, and had not seen any injuries on him;
following an epileptic fit during the visit Yevgeniy Geppa had been
taken to the medical unit; his mother had not mentioned seeing any
injuries on him;
–
inmate Sh. stated that on one occasion in August 2004 he had
accompanied Yevgeniy Geppa from the medical unit back to unit no. 12;
Yevgeniy Geppa had spent about one or two hours in the medical unit;
on the way he had not heard any complaints; he could not say whether
Yevgeniy Geppa had had any injuries;
–
an officer of the medical unit, G., stated that on 5 August 2004 he
had attended to Yevgeniy Geppa after he had fainted during the visit;
when examined, Yevgeniy Geppa had been conscious; he had diagnosed
him with epileptic syndrome and given him an injection of seduxen; he
had had a bruise on his knee; no other injuries had been revealed;
–
the head of the medical unit stated that Yevgeniy Geppa had been
registered with the colony medical unit as suffering from a
psychiatric disorder, namely, “past organic brain lesion of
complex origin” (owing to a traumatic brain injury and drug
abuse), with emotional instability and compensatory behaviour, and
epileptic syndrome. From 27 August 2004 to 18 September 2004 he had
been transferred to the hospital of the Penitentiary Department for
examination and treatment; the above diagnosis had been confirmed and
in addition to that he had been diagnosed with chronic pyelonephritis
of his only kidney at the stage of remission. It had been recommended
that he be placed in the psychiatric hospital of Smolensk. In the
colony Yevgeniy Geppa had been provided with adequate medical care;
on 14 November 2004 he had been transferred, with his consent, to the
psychiatric hospital of Smolensk.
- The
applicant challenged the decision of 27 January 2005 in court.
- On
17 March 2005 the Kirovskiy District Court of Kursk found that the
inquiry conducted by the prosecutor’s office into Yevgeniy
Geppa’s death had been insufficient. It referred in particular
to the failure to verify the allegations of ill-treatment and
indicated that it was necessary to establish the origin of the head
injury and the brain tumour which caused his death. The court granted
the applicant’s request and ordered the prosecutor’s
office to carry out the inquiry in accordance with law. The
prosecutor’s office appealed.
- On
19 April 2005 the Kursk Regional Court upheld the decision of the
Kirovskiy District Court dated 17 March 2005. Following this decision
the prosecutor’s office requested the Penitentiary Department
to send Yevgeniy Geppa’s medical file and the autopsy report to
it.
- On
22 April 2005 the applicant requested the prosecutor’s office
to grant her victim status in the criminal proceedings concerning her
son’s death. She also requested access to documents from his
medical file.
- On
3 May 2005 the prosecutor’s office quashed its decision of
27 January 2005 refusing to open a criminal investigation and an
additional inquiry was ordered. The applicant was informed of the
decision; she was also informed that there were no grounds to grant
her victim status.
- On
13 May 2005 the prosecutor’s office decided to refuse to
institute criminal proceedings concerning Yevgeniy Geppa’s
death. It stated that an additional inquiry had been carried out,
which had included an examination of the medical file and questioning
of the psychiatrists of the colony and of the hospital of the
Penitentiary Department. It was established that the cause of death,
the brain tumour, was consistent with the earlier diagnosis indicated
in the colony medical file. It was also noted that Yevgeniy Geppa had
sustained a head injury in 1997 and in the past he had abused
alcohol, psychotropic substances and home-brewed narcotics; he had
also been diagnosed with epilepsy. It was therefore concluded that
there were no grounds to believe that the colony staff had committed
a crime against Yevgeniy Geppa.
- The
applicant challenged the decision of 13 May 2005 in court.
- On
3 June 2005 the Kirovskiy District Court declared the decision
dispensing with criminal proceedings unlawful. It found that the
investigation file was incomplete and the prosecutor’s
conclusions contradictory, in particular with reference to the
failure to verify the origin of the head injury and the brain tumour,
as well as Yevgeniy Geppa’s state of health and the adequacy of
his medical treatment prior to his transfer to the psychiatric
hospital. The prosecutor’s office appealed.
- On
16 June 2005 the prosecutor’s office sent a number of official
inquiries to medical institutions. It asked the Kursk Regional
Psychiatric Hospital if Yevgeniy Geppa’s had been under their
supervision in the past; it requested the details of his treatment
for his head injury in 1997 from the Kursk Municipal Clinic and the
Kursk Regional Clinic. Finally, it requested the director of the
specialist oncology clinic to explain the origin, the development
pattern, methods of diagnosing and treatment of the brain tumour with
which Yevgeniy Geppa had been diagnosed and the recovery rate for the
disease. The latter enquiry does not appear to have been answered.
- On
30 June 2005 the Kursk Regional Court upheld, in substance, the
decision of the Kirovskiy District Court dated 3 June 2005.
- On
27 July 2005 the prosecutor’s office quashed its decision of
13 May 2005 refusing to open the criminal investigation and an
additional inquiry was ordered. The applicant was informed about the
decision and provided with a copy thereof.
- On
29 July 2005 the administrative officer of the hospital of the
Penitentiary Department in Kursk wrote an explanatory note for the
investigation file. He stated that during his in-patient treatment at
the hospital Yevgeniy Geppa had showed no symptoms of formation of a
brain tumour. Early signs of the tumour could have only been detected
by a CT scan, which had not been possible in the hospital for the
lack of the requisite equipment. Moreover, there had been no apparent
reason to order a CT scan.
- On
the same day the prosecutor’s office decided to refuse to
institute criminal proceedings concerning Yevgeniy Geppa’s
death. It referred to the medical records dated October-November 1997
relating to his head injury and concluded that it had predated his
imprisonment. It further stated that the medical equipment available
at the institutions and medical centres of the penitentiary system
could not be used to diagnose the early stages of a brain tumour or
to assess the necessity of a CT scan. The scan was recommended on 1
December 2004, after the examination at the psychiatric hospital, and
carried out on 6 December 2004, two days before Yevgeniy Geppa’s
death. It was therefore concluded that there had been no grounds to
believe that the colony staff had caused Yevgeniy Geppa injuries or
had been negligent in deciding to transfer him to the psychiatric
hospital for examination. The applicant was informed about the
decision and provided with a copy thereof.
- The
applicant challenged the decision of 29 July 2005 in court.
- On
30 September 2005 the Kirovskiy District Court declared the decision
dispensing with criminal proceedings unlawful. It found that the
inquiry had failed to establish a link between the head injury
sustained by Yevgeniy Geppa in 1997 and his death in 2004 and had
also failed to substantiate the conclusion that the medical care
received by Yevgeniy Geppa had been appropriate for his condition.
The court indicated that the above defects could only be remedied by
a proper investigation and criminal proceedings and therefore it had
been mandatory to open a criminal file. The court also pointed out
that the procedural law did not allow a ten-day preliminary inquiry
to be conducted more than once.
- On
14 November 2005 the prosecutor’s office quashed its decision
of 29 July 2005 refusing to open a criminal investigation and an
additional inquiry was ordered. The applicant was informed about the
decision and provided with a copy thereof.
- On
the same day the prosecutor’s office of Kursk requested the
prosecutor’s office of Smolensk to provide it with Yevgeniy
Geppa’s medical file from the psychiatric hospital of Smolensk
and the autopsy report.
- On
18 November 2005 the prosecutor’s office decided to refuse to
institute criminal proceedings concerning Yevgeniy Geppa’s
death. It essentially reiterated the contents of the decision of 29
July 2005, adding that the prosecutor’s office of Smolensk had
not replied to the request of 14 November 2005, hence there was
no new information that would allow the allegations of medical
negligence to be confirmed. The applicant was informed about the
decision and provided with a copy thereof.
- On
13 December 2005 the prosecutor’s office of Smolensk forwarded
the requested documents to the prosecutor’s office of Kursk.
- On
30 December 2005 the prosecutor’s office quashed its decision
of 18 November 2005 refusing to open a criminal investigation and an
additional inquiry was ordered. The applicant was informed about the
decision and provided with a copy thereof. On 10 January 2006 the
term for additional inquiry was extended from three to ten days in
order to obtain the medical expert opinion.
- On
10 January 2006 the prosecutor’s office requested the director
of the Kursk Regional Clinic to explain the origin of, the possible
cause of and methods of diagnosing the brain tumour found in Yevgeniy
Geppa. The director was asked whether the tumour could have been
caused by Mr Geppa’s head injury, whether it was treatable
and whether Mr Geppa’s death could have been avoided if timely
medical treatment had been provided.
- On 16 January 2006 the clinic director and the head of
the clinic’s neurosurgery department replied as follows:
“1. The cause of cancerous brain
tumours (glioblastoma multiforme) is currently unknown.
2. Neither scientific research data nor our
experience confirms any link between brain injuries and [tumours].
3. Early signs of a brain tumour formation
are general brain and localised neurological symptoms and changes in
the fundus of the eye.
4. Glioblastoma multiforme is one of the most
malignant forms of brain tumour with the period between its formation
and death varying between two and six months depending on its
location.
5. The prognosis of this disease, regardless
of the promptness of its diagnosis and specialist treatment, is
extremely negative, the disease not being susceptible to treatment.”
- On
17 January 2006 the prosecutor’s office decided to refuse to
institute criminal proceedings concerning Yevgeniy Geppa’s
death. In addition to the medical documents and witness statements
relied on in the previous decisions, it referred to the medical
opinion of 16 January 2006 given by the Kursk Regional Clinic
director. It concluded that there had been no evidence of violence or
medical negligence having contributed to his death. The applicant was
informed about the decision and provided with a copy thereof. She
appealed against this decision in court.
- On
13 March 2006 the Kirovskiy District Court declared the decision
dispensing with criminal proceedings unlawful. It found that the
inquiry had failed to address the reasons for the diagnosis having
been established so late despite Yevgeniy Geppa’s frequent
examination and treatment; the court could not rule out that there
had been an unjustified delay in providing him with specialised
medical care and pointed out that the negative prognosis did not
absolve the penitentiary and medical staff from taking all the
necessary steps in order to diagnose and treat him. The prosecutor’s
office appealed.
- On
11 April 2006 the Kursk Regional Court quashed the decision of 13
March 2006 on the grounds that it had failed to specify the
shortcomings in the investigation that the prosecutor’s office
had to remedy. The case was remitted to the same court for a fresh
examination.
- On
25 April 2006 the Kirovskiy District Court found the decision
dispensing with criminal proceedings lawful and justified. Addressing
the applicant’s argument that the investigators had failed to
request the medical file from the psychiatric hospital of Smolensk,
the court observed that the file had actually been obtained, that it
had been attached to the investigation file and, furthermore, that it
had been directly examined in the courtroom.
- On
5 May 2006 the applicant was given the opportunity to access Yevgeniy
Geppa’s medical file.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Early release on health grounds
- Article 175 § 6 of the Penitentiary Code of the
Russian Federation provides as follows:
“A detainee who has acquired a serious illness
[other than psychiatric] which prevents him from serving his sentence
may lodge a request with a court for [ early] release ... [This
request] must be lodged by the detainee through the administration of
the penitentiary institution ... The said request must be accompanied
by the expert opinion of a medical commission or a socio-medical
expert institution and the detainee’s prison record.”
- On 6 February 2004 the Government of the Russian
Federation adopted Decree no. 54 establishing a list of diseases
incompatible with serving a prison sentence. That list included
malignant tumours (cancer) in stage IV according to TNM
classification (point 7 of the decree) and kidney diseases in the
terminal phase with chronic renal failure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained about the death of her son, Yevgeniy Geppa,
while he was serving his prison sentence. She alleged that his death
was caused by a combination of regular beatings by the colony
officials, a lack of medical care in respect of the injuries
sustained, and his previously acquired medical conditions. She relied
on Article 2 of the Convention, which reads in so far as relevant as
follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
...”
- The
Government contested these allegations.
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. The parties’ submissions
- The
applicant complained that the death of Yevgeniy Geppa was a result of
his ill-treatment at the correctional colony OX-30/3 and the failure
of the penitentiary authorities to provide him with adequate medical
assistance in respect of the injuries caused by beatings and his
other ailments. She referred in particular to the episode of August
2004 when she had visited Yevgeniy Geppa at the colony and he had
fainted during the visit. She alleged that she had seen bruises on
his body and blood on his lips and that he had told her that he was
being beaten by the colony officials. She also alleged that he had
told her about the beatings during her last visit on 17 October 2004,
but had said that he could not complain about it for fear of
reprisals.
- The
applicant further alleged that the investigation had failed to verify
her allegations that there had been an unjustified delay in
transferring Yevgeniy Geppa to the psychiatric hospital of Smolensk
and that he had been deprived of medical treatment in the period
before his transfer.
- She
also argued that the prison authorities should have ordered his
release on medical grounds but had failed to do so.
- The
Government contested each of the above allegations.
They
referred to the medical opinion of 16 January 2006 given by the Kursk
Regional Clinic director and the head of its neurosurgery department
(cited in paragraph 50 above) indicating that the origins of the
tumour found in Yevgeniy Geppa were unknown and that it was not
susceptible to treatment. They further pointed out that the 1997
brain injury of Yevgeniy Geppa predated his imprisonment and that it
had been documented in various medical records. They accordingly
concluded that there had been no violation of Article 2 of the
Convention as regards its substantive limb.
- The
Government further denied the allegations of medical negligence,
claiming that Yevgeniy Geppa had been under medical supervision and
had received the necessary treatment. The medical file contained
records concerning the treatment received by him in 2000, 2003 and
2004 in relation to the chronic pyelonephritis and the post-traumatic
psychiatric disorder (see paragraphs 7-8 and 13 above). As soon as
his condition had required specialised medical care he had been
transferred first to the hospital of the Penitentiary Department and
then to the psychiatric hospital of Smolensk. At the latter
institution he had been diagnosed with a brain tumour, but had died
within days of the diagnosis having been established. The cause of
the death had been found to be the brain tumour (glioblastoma
multiforme).
- As
regards the allegations that Yevgeniy Geppa had been entitled to
early release on medical grounds, in particular because of
pyelonephritis of his only kidney, the Government claimed that that
diagnosis did not automatically entitle him to release. They referred
to the list of diseases deemed incompatible with serving a prison
sentence adopted by the Government on 6 February 2004 and pointed out
that release was obligatory in the event of kidney failure, which was
not Yevgeniy Geppa’s case. They referred to the autopsy report
indicating that his kidney disease had been in the stage of remission
and concluded that the penitentiary authorities had therefore been
under no obligation to initiate early release proceedings. The
Government further claimed that if Yevgeniy Geppa had believed that
he had medical grounds for early release, he could have applied for
it of his own initiative, as provided by Article 175 of the
Penitentiary Code, but he had not done so. There is no evidence that
he had ever approached the colony administration with a view to
requesting such a release, or that the administration had unlawfully
hindered his right to do so.
- Finally,
as regards the procedural guarantees of Article 2 of the Convention,
they claimed that the inquiry conducted into Yevgeniy Geppa’s
death had been prompt and thorough and that it had been conducted by
the prosecutor’s office, an authority independent from the
Ministry of Justice, which governed the penitentiary system. They
pointed out that the applicant’s allegations of her son’s
ill-treatment had been looked into a number of times both before and
after his death, and no evidence of beatings had been found. They
contended that prior to his death Yevgeniy Geppa had not complained
of ill-treatment. After the incident of 5 August 2004, when he had
fainted during a family visit, he had been examined by a doctor, who
had not noted any injuries except a bruise on his knee. The inquiry
into his death had also looked into the allegations of ill-treatment
because of their possible causal link to his death. Several colony
officials and inmates had been questioned concerning the alleged
beatings, and nobody had confirmed them. The Government contended
that the inquiry’s conclusions had been well-founded.
2. The Court’s assessment
(a) General principles
- The Court reiterates that Article 2 of the Convention,
which safeguards the right to life, ranks as one of the most
fundamental provisions in the Convention. Together with Article 3, it
enshrines one of the basic values of the democratic societies making
up the Council of Europe. The first sentence of Article 2 enjoins the
Contracting States not only to refrain from the taking of life
“intentionally” or by the “use of
force” disproportionate to the legitimate aims referred to
in sub-paragraphs (a) to (c) of the second paragraph of that
provision, but also to take appropriate steps to safeguard the lives
of those within its jurisdiction (see, inter alia, L.C.B.
v. the United Kingdom, 9 June 1998, § 36, Reports of
Judgments and Decisions 1998-III, and Keenan v. the United
Kingdom, no. 27229/95, § 89, ECHR 2001-III).
- Persons
in custody are in a particularly vulnerable position and the
authorities are under an obligation to account for their treatment.
Having held that the Convention requires the State to protect the
health and physical well-being of persons deprived of their liberty,
for example by providing them with the requisite medical assistance
(see, inter alia, Keenan, cited above, § 111;
Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and
McGlinchey and Others v. the United Kingdom, no.
50390/99, § 46, ECHR 2003-...), the Court considers that, where
a detainee dies as a result of a health problem, the State must offer
an explanation as to the cause of death and the treatment
administered to the person concerned prior to his or her death.
- As
a general rule, the mere fact that an individual dies in suspicious
circumstances while in custody should raise an issue as to whether
the State has complied with its obligation to protect that person’s
right to life (see Slimani v. France, no. 57671/00, § 27,
ECHR 2004-IX (extracts)).
- The Court reiterates that where lives have been lost
in circumstances potentially engaging the responsibility of the
State, Article 2 entails a duty for the State to ensure, by all means
at its disposal, an adequate response – judicial or otherwise –
so that the legislative and administrative framework set up to
protect the right to life is properly implemented and any breaches of
that right are repressed and punished (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 91, ECHR 2004-XII). In
particular, when a detainee dies in suspicious circumstances, an
“official and effective investigation” capable of
establishing the causes of death and identifying and punishing those
responsible must be carried out of the authorities’ own motion
(see Paul and Audrey Edwards v. the United Kingdom, no.
46477/99, § 74, ECHR 2002-II).
- The system required by Article 2 must provide for an
independent and impartial official investigation that satisfies
certain minimum standards as to effectiveness. Accordingly, the
competent authorities must act with exemplary diligence and
promptness, and must of their own motion initiate investigations
capable of, firstly, ascertaining the circumstances in which the
incident took place and any shortcomings in the operation of the
regulatory system and, secondly, identifying the State officials or
authorities involved. The requirement of public scrutiny is also
relevant in this context (see Kats and Others v. Ukraine, no.
29971/04, § 116, 18 December 2008).
(b) Application of those principles to the
present case
(i) Whether Yevgeniy Geppa died as a
result of ill-treatment and inadequate medical care while in
detention
- The
Court begins its examination by noting that the applicant alleged
that the authorities were responsible for her son’s death for
two main reasons. Firstly, she believed that Yevgeniy Geppa had been
ill-treated in the colony, and that he had thus sustained a head
injury which had subsequently caused the brain tumour which
ultimately led to his death. Secondly, she contended that the medical
assistance provided to him in the penitentiary institutions had been
inadequate, in particular that there had been an unjustified delay in
transferring him to the psychiatric hospital of Smolensk, a
specialised institution where he could have been treated for the
brain tumour. In addition to that she argued that the penitentiary
authorities had failed to order his early release on account of his
pre-existing kidney condition, and that that had been a factor
contributing to his death.
- Given
the alleged causal link between Yevgeniy Geppa’s alleged
ill treatment and death, in particular the contributory nature
of the injuries to his terminal illness, the Court will examine the
facts relating to the complaints under Article 2 jointly with those
relating to Article 3 of the Convention. It will thereafter decide
whether it is necessary to examine the complaints under Article 3 of
the Convention separately.
- As regards the allegations of ill-treatment, the Court
reiterates that, in assessing evidence, it adopts the standard of
proof “beyond reasonable doubt” (see Orhan v. Turkey,
no. 25656/94, § 264, ECHR 2002). Such proof may follow from
the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. In this
context, the conduct of the parties when evidence is being obtained
has to be taken into account (see Ireland v. the United Kingdom,
18 January 1978, § 161, Series A no. 25). In the present
case, the applicant alleged that she had heard from her son that he
had been ill-treated, a statement that is not supported by any other
material in the case-file. It is particularly noteworthy that
Yevgeniy Geppa never lodged any complaints regarding ill-treatment,
even though the alleged beatings predated his death by several
months. Moreover, it does not appear that he instructed the applicant
to do so on his behalf, although he had clearly had the opportunity
to do so during her visits on 5 August 2004 and 17 October 2004, when
the beatings were allegedly mentioned. The inquiries into the
applicant’s allegations of her son’s ill treatment
took place while he was still alive, and he made no statements to
that effect when interviewed by the inspectors. While the Court is
mindful of the applicant’s argument that he did not wish to
complain for fear of reprisals, it cannot establish the fact of
ill-treatment if the only reliable information about it had been
voluntarily withheld by the alleged victim of violence. It observes
that there is nothing in the case file that would point to any other
potential sources of relevant information. Accordingly the Court is
unable to take any investigative steps beyond those already taken by
the domestic inspectors who investigated the applicant’s
allegations of ill-treatment.
- In
view of the foregoing the Court is not in a position to conclude,
beyond reasonable doubt, that Yevgeniy Geppa was subjected to
beatings in the correctional colony.
- The
Court furthermore notes that the medical and forensic reports drawn
up in Yevgeniy Geppa’s case unequivocally point to the natural
cause of his death, that is, the formation of a brain tumour. In
particular, the Kursk Regional Clinic director and the head of its
neurosurgery department refused, in their medical opinion of 16
January 2006, to make any connection between a possible head injury
and the tumour formation. The Court therefore sees no basis to
establish that Yevgeniy Geppa’s death could have been caused,
directly or indirectly, by a trauma resulting from beatings.
- It
will therefore proceed to examine whether Yevgeniy Geppa died because
he did not receive timely and adequate medical assistance in
detention. The applicant contended that the medical staff and the
administrative officers of the colony and of the other penitentiary
institutions to which her son had been transferred for examination
and treatment had been negligent in not having detected his condition
until its terminal phase and had thus been unable to provide him with
treatment that could have saved his life. The Government, on the
contrary, claimed that the authorities had taken all the necessary
measures to ensure he was provided with adequate medical advice and
treatment.
- The
Court observes that the medical negligence alleged by the applicant
has three aspects. Accordingly, it will have to examine firstly
whether there was a negligent failure to diagnose Yevgeniy Geppa’s
tumour, which caused his death; secondly, whether the timing of his
transfer to the psychiatric hospital adversely affected his prospects
of recovery; and thirdly, whether the medical assistance provided to
him between 5 August 2004 and 14 November 2004 was appropriate for
his condition.
- The
applicant pointed out that the decline of Yevgeniy Geppa’s
health coincided with his transfer to the correctional colony
OX-30/3. However, it must be noted that Yevgeniy Geppa had had a
number of serious health conditions acquired prior to his
imprisonment. In the four years preceding the transfer he underwent
three periods of in-patient treatment at the hospital of the
Penitentiary Department in Kursk for chronic pyelonephritis of his
only kidney and a post-traumatic brain lesion. He had also been
diagnosed with epileptic syndrome in the past. On account of the
above conditions he was registered with the colony medical unit as
requiring regular supervision. It appears that before the incident of
5 August 2004, when he fainted during the family visit to the colony,
he did not require any examination or treatment except for the
routine supervision of those conditions. As regards that episode, the
Court considers that it must be viewed against the background of his
medical history. It observes that after having fainted during the
family visit Yevgeniy Geppa was immediately taken to the medical
unit, where he was examined and diagnosed with epileptic syndrome and
given an injection of seduxen. It was not unreasonable on the part of
the medical personnel to assume that they were dealing with a routine
outbreak of a chronic condition. Any doubts they might have had
concerning the possible aggravation of his condition were adequately
addressed by the follow-up decision to transfer Yevgeniy Geppa to the
hospital of the Penitentiary Department in Kursk for further
examination and treatment. The Court sees no reason to conclude that
the medics’ response to the episode of 5 August 2004 amounted
to professional negligence or was inadequate.
- Following
that, from 27 August 2004 to 18 September 2004 Yevgeniy Geppa
underwent in-patient examination and treatment at the hospital of the
Penitentiary Department in Kursk. As regards the adequacy of the
medical care provided at the hospital, the Court notes that he was
treated in respect of a psychiatric disorder (post-traumatic brain
lesion), according to the diagnosis established in that period.
Neither the applicant nor Yevgeniy Geppa ever complained that the
treatment provided by the hospital of the Penitentiary Department in
Kursk was inadequate to the diagnosed conditions. There are also no
grounds to find that the hospital staff were negligent in not having
detected the formation of the tumour. It refers to the explanation
given by the hospital official stating that during his in-patient
treatment Yevgeniy Geppa showed no symptoms of formation of a brain
tumour which would have made it necessary to order a CT scan. Nothing
in the file indicates that that assessment had been unreasonable or
negligent. Moreover, the hospital doctors, having recommended his
placement in the psychiatric hospital of Smolensk, demonstrated
adequate judgment of his need for further specialised examination and
treatment. Yevgeniy Geppa himself agreed to the placement. The
applicant also appears to have accepted that this recommendation was
reasonable.
- As
to whether the transfer was carried out with sufficient promptness,
the Court observes that the recommendation for Yevgeniy Geppa’s
transfer to the psychiatric hospital was made on 18 September 2004.
The recommendation was not expressed in terms of urgency and did not
contain any indication as to the timing or the modalities of the
proposed transfer. Pursuant to this recommendation, and after giving
his consent to the transfer, on 14 November 2004 Yevgeniy Geppa was
sent to the psychiatric hospital of Smolensk. The Court considers
that the recommendation was implemented within a reasonable time,
given the absence of any indication that the case concerned a medical
emergency. Moreover, the materials in the case file contain nothing
to indicate that Yevgeniy Geppa himself asked for his transfer to be
expedited or that there had been any objective reasons to do so.
There is no basis to conclude that the authorities misjudged, or
disregarded, the degree of his health decline when observing his
general condition in the light of already existing medical
assessment. The applicant’s account of Yevgeniy Geppa’s
being denied medical assistance pending his transfer is not
corroborated by any evidence at the Court’s disposal.
- The
Court finally takes note of the medical opinion given on 16 January
2006 by the specialist of the Kursk Regional Clinic indicating that
the development and the outcome of a tumour of the kind found in
Yevgeniy Geppa does not depend on timely diagnosis and treatment.
This opinion gives no support to the applicant’s argument that
the delay in his transfer accelerated his death. The Court cannot
speculate as to whether Yevgeniy Geppa would have lived longer, or
could have enjoyed a better quality of life, if his tumour had been
diagnosed earlier.
- The
Court therefore concludes that the authorities discharged their
positive obligations under Article 2 of the Convention in having
provided Yevgeniy Geppa with adequate medical treatment.
- As
regards the applicant’s argument that the penitentiary
authorities had failed to order Yevgeniy Geppa’s early release
on account of his pre-existing kidney condition, the Court notes that
this claim had no basis in the domestic law, which provided for
release only if a kidney condition was associated with chronic renal
failure. Yevgeniy Geppa, on the contrary, had a condition which was
in the remission stage. Moreover, there is no evidence that he ever
lodged a request for early release.
(ii) Whether there has been an effective
investigation
- In
so far as the applicant could also be understood to be complaining
about a lack of an effective investigation into Yevgeniy Geppa’s
ill treatment and death, the Court notes that an obligation to
conduct an effective investigation will arise if an individual dies
in suspicious circumstances while in custody or where an individual
raises an arguable claim that he has been seriously ill-treated. The
Court has held on numerous occasions that an obligation to
investigate “is not an obligation of result, but of means”:
not every investigation should necessarily be successful or come to a
conclusion which coincides with the claimant’s account of
events; however, it should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove
to be true, to the identification and punishment of those
responsible. Thus, the investigation of serious allegations of
ill-treatment must be thorough. That means that the authorities must
always make a serious attempt to find out what happened and should
not rely on hasty or ill-founded conclusions to close their
investigation or as the basis of their decisions. They must take all
reasonable steps available to them to secure the evidence concerning
the incident, including, inter alia, eyewitness testimony and
forensic evidence. Any deficiency in the investigation which
undermines its ability to establish the cause of injuries or the
identity of the persons responsible will risk falling foul of this
standard (see, among many authorities, Mikheyev v. Russia,
no. 77617/01, §§ 107 et seq, 26 January 2006, and
Assenov and Others v. Bulgaria, 28 October 1998, §§
102 et seq, Reports 1998 VIII).
- The
applicant in the present case claimed that the death of her son had
resulted from the cumulative effects of ill-treatment and a lack of
medical care; accordingly it was incumbent on the authorities to
verify both alleged causes of death. The Court will begin its
assessment by noting that the autopsy conducted immediately after
Yevgeniy Geppa’s death was documented in a detailed post-mortem
report which found that the death had been caused by a brain tumour.
This finding was consistent with the diagnosis that had been
established at the hospital days before his death. Accordingly, the
Court considers that the death of Yevgeniy Geppa cannot be described
as a “death in suspicious circumstances”, despite the
fact that he was in custody at the time of death.
- The Court observes that immediately after Yevgeniy
Geppa’s death the prosecutor’s office of Smolensk
examined the autopsy report, the medical file and the statements of
two witnesses in the context of a preliminary inquiry and concluded
that it was not dealing with a matter that required a criminal
investigation. In so far as the immediate response to his death is
concerned, the Court considers that the authorities acted reasonably
in having secured the forensic evidence necessary for any subsequent
inquest and having conducted a preliminary inquiry into the
circumstances of his death.
- However,
the authorities were later confronted with the applicant’s
allegations challenging the natural cause of death and were obliged
to assess the possible impact of the alleged ill-treatment on
Yevgeniy Geppa’s state of health, as well as the adequacy of
the medical care he was receiving in custody. Following her complaint
of 21 December 2004, the prosecutors’ office conducted an
on-site inquiry during which they questioned the colony officials and
inmates about any episodes of ill-treatment they could have been
privy to or injuries they may have noticed on him. None of those
persons corroborated the allegations of ill-treatment or the use of
force. Based on their statements and the medical file the
prosecutor’s office refused to open a criminal investigation.
- The Court observes that the prosecutor’s
decision not to open a criminal investigation was subject to four
rounds of judicial review. In the first three rounds the courts found
the inquiry incomplete and gave instructions to the prosecutor’s
office as to the further steps to be taken. They required, in
particular, that the investigators look into the possible traumatic
origin of the tumour of which Yevgeniy Geppa had died and also assess
the adequacy of the medical treatment he had received. In the
decision of 30 September 2005 the court held, in addition, that it
was indispensable to address these issues properly in criminal
proceedings. However, in its subsequent decision of 25 April 2006 the
same court was satisfied with the content of the investigation file
and no longer required a criminal case to be opened in order to
address those issues.
- Having
regard to the principles developed in its case-law relating to the
requirement of an effective investigation, the Court notes that the
inquiry, despite having been reopened several times, lasted for about
one year in total, which is not in itself unreasonable. As to its
substance, it addressed the two allegations made by the applicant,
that is, the allegation of ill-treatment and the allegation of
medical negligence. The part of the inquiry concerning the alleged
ill-treatment was also preceded by inquiries into the complaints
which the applicant had brought while Yevgeniy Geppa was still alive.
The Court has found above that the authorities were justified in
having found these allegations unsubstantiated, particularly in view
of Yevgeniy Geppa’s own silence on the matter (see paragraph 75
above). Moreover, as the Court also found above, it sees no obvious
omissions on the part of the authorities in their attempts to gather
evidence on this issue (loc. cit.).
- As
regards the verification of the allegations of medical negligence,
the Court observes that the medical and forensic documents obtained
by the inquiry were sufficient to address any suspicion of a criminal
offence. In particular, the questions put to the medics involved in
Yevgeniy Geppa’s treatment and to the independent medical
specialists were relevant and exhaustive on the point of the alleged
link between Yevgeniy Geppa’s death and possible omissions on
the part of the medical and penitentiary staff. The Court considers
that the final decision concerning the absence of grounds for opening
a criminal investigation was reasonable and sufficiently argued on
the basis of the information received in reply. Although it took
several rounds of judicial review for the investigation to address
this point in a satisfactory manner, the shortcomings had been duly
corrected and the final procedural decision was taken within
reasonable time.
- The
Court also notes that the applicant had been duly informed about
every decision taken following her complaints, she could, and did,
obtain access to the documents she requested, and her motions were
examined by the courts reviewing the case. Indeed, she did not
complain that she had not been sufficiently informed of, or involved
in, the inquiry.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the authorities have complied with their obligation to
conduct an effective investigation into Yevgeniy Geppa’s death.
- There
has accordingly been no violation of Article 2 of the Convention as
regards its substantive or procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The applicant complained of a violation of Article 3
of the Convention in respect of Yevgeniy Geppa, alleging that he had
been ill treated in detention. She reiterated, mutatis
mutandis, her arguments concerning the complaint under Article 2
of the Convention. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested the allegation that Yevgeniy Geppa had been
ill-treated. In this connection they reiterated their comments as
regards the alleged violation of Article 2 of the Convention.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The Court observes that the complaint under Article 3
of the Convention has the same factual background as the above
complaint under Article 2 of the Convention. Moreover, in finding no
violation of the latter provision the Court also had regard to the
allegations of ill-treatment (see paragraphs 75-76 above) and the
authorities’ compliance with their procedural obligation to
conduct an effective investigation (see paragraphs 89-91 above).
In the light of this finding the Court considers that it is not
necessary to examine the facts of the case separately under Article 3
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 2 of the Convention;
- Holds that there is no need to examine the
complaint under Article 3 of the Convention;
Done in English, and notified in writing on 3 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
