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FIRST
SECTION
CASE OF SHCHEBETOV v. RUSSIA
(Application
no. 21731/02)
JUDGMENT
STRASBOURG
10
April 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shchebetov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21731/02) 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 Anatoliy Dmitriyevich
Shchebetov (“the applicant”), on 29 April 2002.
- The
applicant was represented by Ms S. Davydova, a
lawyer with the Centre of Assistance to International Protection in
Moscow. The Russian Government (“the Government”)
were represented by Mr P. Laptev, former Representative of the
Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he had contracted HIV and
tuberculosis in custody, that he had been denied adequate medical
assistance, that he had had no effective remedy in respect of his
complaints relating to the state of his health, and that his
correspondence had been censored and delayed.
- On
2 September 2005 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.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismisses it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lived until his arrest in the town of
Yakutsk.
A. Criminal proceedings against the applicant
- According
to the applicant, in June 1997 he was arrested, beaten up by the
police and released several days later. In September 1997 he was
again arrested and charged with theft and robbery. On 20 February
1998 the Yakutsk Town Court found the applicant guilty as charged and
sentenced him to twelve years’ imprisonment. The applicant was
conditionally released on 1 June 2004, having served two-thirds of
his sentence. However, two and a half months later he was arrested
again on suspicion of aggravated robbery. By a judgment of 8 April
2005 of the Yakutsk Town Court he was found guilty as charged and
sentenced to nine years’ imprisonment, to be served in
correctional colony no. 7.
B. Applicant’s health
1. Tuberculosis
(a) Infection with tuberculosis and
treatment
- On
1 October 1997 the applicant was admitted to temporary detention
facility no. IZ-14/1 in Yakutsk. According to the Government, who
relied on a medical record drawn up by the head of the facility on
14 October 2005, together with the applicant’s medical
history, the applicant was examined by the prison doctor on 2 October
1997. In addition, the necessary medical tests were performed, in
particular blood tests for HIV and syphilis, which showed no presence
of infection. A chest X-ray examination did not reveal any problems
with the applicant’s lungs. Having been found to be in good
health, he was placed in cell no. 1 with other healthy inmates.
According to the Government, inmates suffering from tuberculosis were
detained in a separate wing of the detention facility.
- The next chest X-ray examination, on 30 April 1998,
showed a low intensity focal shade on the upper lobe of the
applicant’s lung. On this basis he was diagnosed with focal
tuberculosis. Additional examinations were recommended.
- On 15 May 1998 a prison tuberculosis specialist
examined the applicant and prescribed treatment. It follows from the
medical record that it was not until 29 July 1998 that the applicant
was admitted to the tuberculosis ward of the Sakha (Yakutiya)
Republic prison hospital in correctional colony no. 7 (hereinafter
“the colony hospital”), the reason being that his
transfer to the hospital could only be effected after his conviction
became final. The applicant was diagnosed with focal tuberculosis of
the right lung in the infiltration stage and post-traumatic
encephalopathy. He was released from the hospital on 28 October 1998
after an intensive course of anti-tuberculosis treatment with the
recommendation that he continue with the drug therapy. It appears
from the documents submitted to the Court that the recommendation was
fully complied with.
- The
applicant was re-admitted to the colony hospital on six occasions
– from 10 to 31 March 1999, from 12 May to 26 July 2000, from
6 March to 1 June 2001, from 13 December 2001 to 23 January
2002, from 28 November to 4 December 2002, and from 25 March to 5 May
2004 – where he was placed on an antibacterial chemotherapy
regimen. Relying on the applicant’s medical record, the
Government stressed that after continuous tuberculosis treatment and
clinical testing, on 23 July 2000 the applicant was diagnosed with
infiltrative tuberculosis of the upper lobe of the right lung in the
resolution stage and assessed as requiring regular medical check-ups.
The results of microbiological
tests on bodily fluids performed in 1999 and
2000 identified no presence of mycobacterium tuberculosis. A chest
X-ray examination carried out on 19 September 2001 revealed
isolated small dense nidi on the upper lobe of the applicant’s
right lung, accompanied by restricted pneumosclerosis. On 13 December
2001, following a medical examination by the head of the in-patient
department of the Yakutsk Town Medical Institute for Scientific
Research, the applicant was assigned for less intensive medical
supervision, with the diagnosis of focal pulmonary tuberculosis at
the consolidation stage. The applicant no longer required active
clinical assessment and was to receive prophylactic treatment to
prevent a relapse.
- The
applicant’s medical record contained a number of entries made
by tuberculosis specialists recording his negative, and occasionally
aggressive, attitude towards the treatment and the medical personnel.
The attending doctors spoke with the applicant, explaining the
necessity for and content of the treatment and persuading him to
continue with it. The medical records provided by the Government
further show that he received regular medical attention in respect of
his tuberculosis, as well as medical examinations by prison doctors.
The tuberculosis specialists consistently found his state of health
to be satisfactory following successful courses of anti-relapse
therapy. The applicant seemed to agree with the evaluation of his
health, and made no complaints to the tuberculosis specialists. His
complaints to the prison medical personnel were mostly of a
psychological character, including sleep disorder, extreme
nervousness, and fears of an unspecified nature. Those grievances
were promptly addressed by the prison psychologist or
neuropathologist, as well as by the prescription of medicines. The
Government also provided the Court with extracts from hospital logs
recording the intake of medicines by the applicant, their dosage and
frequency.
(b) Tort proceedings
- In
2001 the applicant sued the Ministry of Justice and the detention
facility, seeking compensation for damage sustained as a result of
his being infected with tuberculosis. He claimed that he had
contracted tuberculosis in detention, having been placed in a cell
with a person infected with the active form of that illness, and that
the administration of the detention facility had remained deaf to his
complaints about the risk of infection.
- The
defendants submitted observations in reply. They insisted that there
was no evidence that the applicant had contracted tuberculosis in
detention because he was a long-term offender and had been in and out
of prison since 1989. The applicant’s “way of life”
was at the root of his contraction of the illness.
- On 12 October 2001 the Yakutsk Town Court dismissed
the applicant’s action, holding as follows:
“... the defendants’ fault for the damage to
the plaintiff’s health was not proved. Under Article 151 of the
Civil Code of the Russian Federation compensation for non pecuniary
damage, as a general rule, is awarded in cases when the fault of the
defendant is established. The fact of [the applicant] contracting
tuberculosis in the detention facility was not proved in open court:
the mere fact that he had been detained in the cell with Mr S., who
was suffering [from tuberculosis], cannot serve as a ground for
finding the defendants responsible for the damage caused and does not
prove their fault because this is only the plaintiff’s
conjecture. Having regard to the character of the illness, the court
considers it possible that the applicant contracted tuberculosis
prior to his detention in 1997 because he had, in fact, been detained
before and had only been at liberty for several months after his
release. As was established in open court, during the plaintiff’s
first medical examination on 2 October 1997 no evidence of
[tuberculosis] was found, but on 30 April 1998 the results of an
X-ray examination were positive: the plaintiff was diagnosed with
focal tuberculosis of the right lung and treatment was prescribed,
[the treatment] was a success, the plaintiff clinically recovered
...”
- On
4 February 2002 the Supreme Court of the Sakha (Yakutiya) Republic
upheld the judgment of 12 October 2001 on appeal, endorsing the Town
Court’s findings.
2. HIV
(a) Contraction of HIV
- According
to the applicant, at the end of December 2001 a colony medical
assistant, Mr P., who was drunk, took a blood sample from an
HIV positive inmate, Mr G. The assistant used the same syringe
to draw the applicant’s blood. The Government disputed the
applicant’s version of events. According to them, on 13
December 2001 the applicant and six other inmates were admitted
to the colony hospital for clinical assessment and anti-tuberculosis
prophylactic treatment. On the following day a colony nurse, Ms Z.,
took blood samples from all the newcomers, including the applicant.
Disposable syringes and needles were used for the blood tests. The
results of the tests received on 18 December 2001 showed no presence
of HIV antibodies in the blood of any of the inmates. Another colony
nurse, Ms S., took a blood sample from inmate G. on 26 December
2001, the day of his arrival at the colony hospital. The Government
stressed that the records of the colony hospital personnel showed
that medical assistant P. had been on sick leave from 12 to 18
December 2001.
- In
March 2002 a blood sample was taken from the applicant to be tested
for HIV. The results were unclear. Two further blood tests were
carried out in July and September 2002. Medical experts also
interpreted the results of those two tests as contradictory.
- In November 2002, following another blood test, the
applicant was diagnosed with HIV. When informing the applicant that
he had contracted HIV, the prison doctor explained the results of the
test and described various aspects of the infection, its assessment
and treatment. It appears from the medical record that the prison
psychologist had a number of meetings with the applicant to provide
psychological support. The record also reveals that the applicant was
subjected to regular clinical assessment to determine whether there
was a need to start antiretroviral drug treatment for HIV. Moreover,
the doctors constantly reminded the applicant, a heavy smoker and
alcohol abuser, of the necessity to adhere to a healthy life style.
Following the detection of the virus, the applicant was assigned an
enriched food regimen and was prescribed courses of multivitamins and
hepatoprotective medicine. On a number of occasions he was admitted
to the therapeutic department of the colony hospital for a more
in-depth evaluation of his state of health, the stage of the HIV
infection and his readiness for drug treatment. However, the medical
record shows that in September 2005 the applicant, without any
explanation, refused to be transferred to the colony hospital for
further medical assessment.
(b) Inquiry into the contraction of HIV
- The
applicant complained to various domestic officials that he had been
infected with HIV.
- The
doctors of the detention facility filed a report on the state of the
applicant’s health. The report stated as follows:
“At the material time [the applicant] is detained
in colony no. YaD-40/5. He is given regular medical check-ups in
medical department no. IK-5 and he has been diagnosed with: focal
tuberculosis of the upper lobe of the right lung in the carnification
phase ... Clinical recovery ... HIV-infection (since November 2002).
... [The applicant] was diagnosed and treated in [the
colony hospital] from 13 December 2001 to 12 February 2002 ...
It is established on the basis of the record of the blood tests that
on 14 December 2001 he was tested for HIV infection. The blood test
was performed by a colony nurse, Ms Z., ... who used disposable
syringes and needles ...”
- On 6 January 2003 an investigator of the Yakutsk Town
prosecutor’s office refused to open a criminal case, finding
that the applicant’s blood sample had not been taken by Mr P.
on 14 December 2001.
- On
11 April 2003 the Yakutsk Town Court ordered an additional inquiry
into the applicant’s complaints. The Town Court’s
reasoning was as follows:
“Having studied the case-file materials, [the
applicant’s] personal file and his medical record, the court
considers that the decision refusing the institution of criminal
proceedings is manifestly ill-founded; [the applicant’s]
statements about the date when his blood sample was taken and the
recording of the date of the test in his medical record are
contradictory ...
It is also necessary to take into account the medical
history of inmate G ... It is impossible to give a definite answer to
the question whether [the applicant’s] blood was taken
immediately after the blood had been taken from inmate G. without an
examination of [the applicant’s] and inmate G.’s medical
records drawn up during their stay in [the colony] hospital ...”
- On 25 April 2003 the prosecutor refused to institute
criminal proceedings, finding that the applicant had not been
subjected to the blood test together with any HIV-positive detainee
and that Mr P. had not taken the applicant’s blood sample. The
prosecutor’s findings were based on the applicant’s and
inmate G.’s medical records, hospital registration logs and
statements by the colony medical personnel, including the colony
nurses Ms Z. and Ms S., and the colony medical assistant, Mr P.
Inmate G. refused to give any statements to the investigators.
- The applicant appealed against the decision of 25
April 2003 to a court, arguing that in December 2001 his blood had
been taken for testing twice. On the second occasion, at some point
after 20 December 2001, assistant P. had taken his blood sample with
the same syringe he had used to take a blood sample from inmate G.
- On
9 July 2003 the Yakutsk Town Court quashed the decision of 25 April
2003 and ordered that criminal proceedings should be opened, giving
the following reasoning:
“On two occasions the investigators refused to
institute criminal proceedings because there was no indication of a
criminal offence, although [they] did not establish the circumstances
and the source of the HIV-infection even though the crime had taken
place – [the applicant] had been infected with HIV – in
the detention facility”.
The
Town Court drew up a list of actions to be taken during the
investigation, including a medical expert examination, confrontation
interviews between the applicant and staff members of the colony
hospital, including Mr P., and inmate G., and verification of Mr P.’s
whereabouts.
- On
7 August 2003 the Supreme Court of the Sakha (Yakutiya) Republic
quashed the decision of 9 July 2003, acting on appeal by prosecution
authorities, and remitted the case for fresh examination, finding
that it was necessary for the Town Court to hear inmate G. as a
witness in order to arrive at the correct decision.
- The
Yakutsk Town Court summoned witness G. to a hearing on
15 December 2003. He refused to testify, invoking his
constitutional right to remain silent. Holding that the applicant’s
and inmate G.’s blood samples had been taken by the two colony
nurses on two separate occasions and that there was no evidence that
Mr P. had performed blood tests, the Town Court dismissed the
applicant’s complaint.
- On 3 February 2004 the Supreme Court of the Sakha
(Yakutiya) Republic upheld the decision of 15 December 2003,
endorsing the Town Court’s reasoning.
C. Applicant’s correspondence with the Court
- According
to the applicant, the administration of the correctional colony had
delayed the dispatch of his correspondence to the European Court of
Human Rights or had not sent his letters at all. He initially cited a
delay in dispatching his letter of 13 November 2003 as an
example of the authorities’ failure to duly comply with their
obligation not to interfere with his communication with the Court.
However, following the notification of the case to the Government, he
no longer relied on the incident involving the letter of 13 November
2003 but offered two other examples. In particular, he insisted that
on 28 November 2002 he had handed a sealed envelope to the head of
the special unit of the correctional colony to be sent to the Court.
The envelope contained a letter and a number of documents in support
of his complaints. However, the letter was mistakenly sent to the
Sakha (Yakutiya) Republic Service for the Execution of Sentences
(hereinafter “the Service”). The colony administration
notified the applicant of the mistake and assured him that the
Service would redirect the letter to the Court. Nevertheless, another
mistake occurred and the applicant’s letter was sent to the
Russian Ombudsman. The applicant insisted that before dispatching his
letter an employee of the Service had seized the attachments to it.
The letter was finally sent to the Court on 13 January 2003. The
applicant stressed that he had learned that the documents had been
seized when by a letter of 16 December 2004 the Court had asked
him to submit copies of the two domestic court decisions which he had
already enclosed with his letter of 28 November 2002. In addition,
the applicant submitted that the prison authorities had delayed the
dispatch of his letter of 25 November 2003.
- The
Government disputed the applicant’s submissions, arguing that
according to correspondence logs drawn up in the facilities where the
applicant was detained since 2002 and until 2004, he had sent twenty
letters to the Court and more than three hundred letters to various
Russian officials. Every letter had been successfully dispatched in a
sealed envelope, save for the one sent by the applicant to the Court
on 13 November 2003. That letter, by mistake, had been sent to the
Supreme Court of the Russian Federation as the applicant had
indicated that it was to be sent to the “last judicial
instance”. On 18 November 2003 the head of the detention
facility had asked the President of the Supreme Court to return the
applicant’s letter immediately. On the following day the letter
had been sent to the Court. The applicant, against his signature, had
been informed about the delay in its dispatch. The Government
provided the Court with extracts from the correspondence logs of the
detention facilities, the letter of the head of the detention
facility to the Supreme Court, and the letter to the European Court
of Human Rights, showing that the applicant’s letter of 13
November 2003 had been dispatched on 19 November 2003 and that the
applicant had been duly informed about the delay.
- In
December 2005 the applicant complained to the Service about the
seizure of the attachments to his letter of 28 November 2002. By a
letter of 28 December 2005 the Service informed him that it was
no longer possible to establish the fact of the loss of the
attachments, let alone which officials could have been responsible.
- The
applicant lodged a similar complaint with the Sakha (Yakutiya)
Republican Prosecutor, seeking institution of criminal proceedings
against the employees of the Service. By a decision of 27 March 2006
the request was dismissed, as the prosecutor found that there was no
evidence in support of the applicant’s allegations.
- Between
the date of the applicant’s first letter to the Court in April
2002 and the communication of the case to the Government, the Court
received more than twenty-five letters from the applicant, including
the twenty letters mentioned by the Government. Almost every letter
arrived with voluminous enclosures. On 20 January 2004 it received
the applicant’s letter of 13 November 2003. On 10 March
2005 the applicant provided the Court with copies of the two court
decisions requested by it on 16 December 2004.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND REPORTS
- The relevant provisions of the domestic and
international law on health care of detainees, including those
suffering from HIV and tuberculosis, are set out in the following
judgments: A.B. v. Russia, no. 1439/06,
§§ 77-84, 14 October 2010; Yevgeniy
Alekseyenko v. Russia, no. 41833/04, §§ 60-66 and
73-80, 27 January 2011; and Pakhomov v. Russia, no.
44917/08, §§ 33-39 and 42-48, 30 September 2011.
THE LAW
I. PRELIMINARY CONSIDERATIONS
- The
Court observes at the outset that in his application form lodged with
the Court in 2003 the applicant complained, inter alia, that
he had been infected with HIV by a colony medical assistant, and that
the authorities had failed to investigate effectively his complaints
about the events in question. In his observations, submitted to the
Court in May 2006, the applicant, while maintaining the complaint of
HIV transmission through the negligent actions of the medical
assistant, gave an alternative version of events. In particular, he
complained that the Russian authorities had failed to safeguard his
life and health in a situation where they were aware that he used
drugs and could acquire the HIV infection while exchanging used
syringes with other inmates. The applicant insisted that the colony
administration had failed “to exercise effective control over
inmates and prevent drug use” in the facility.
- In
this connection, the Court reiterates that it has jurisdiction to
review the circumstances complained of by an applicant in the light
of the entirety of the Convention’s requirements. In the
performance of this task, the Court is free to attribute to the facts
of the case, as established on the evidence before it, a
characterisation in law different from that given by the applicant
or, if need be, to view the facts in a different manner. Furthermore,
the Court has to take into account not only the original application
but also the additional documents intended to complete it by
eliminating initial omissions or obscurities (see
Ringeisen v. Austria,
16 July 1971, § 98, Series A
no. 13, as compared with § 79 and §§ 96-97 of that
judgment).
- Turning
to the present case, the Court observes that the new complaint
pertaining to the HIV transmission was submitted after notice of the
initial application had been given to the Government on 2 September
2005. In the Court’s view, the new complaint raised under
Article 2 of the Convention is not simply an elaboration of the
original complaints lodged with the Court more than three years
earlier, on which the parties have already commented. The Court
therefore limits its examination to the complaint about the
contraction of HIV through a contaminated syringe (see Nuray
ÿen v. Turkey (no. 2), 30 March
2004, no. 25354/94, § 200; Melnik
v. Ukraine, no. 72286/01,
§§ 61-63, 28 March 2006; Kravchenko
v. Russia, no. 34615/02,
§§ 26-28, 2 April 2009; and Isayev v. Russia,
no. 20756/04, §§ 81-83, 22 October 2009).
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION ON
ACCOUNT OF THE APPLICANT’S CONTRACTION OF HIV
- The
applicant complained under Articles 2, 3 and 13 of the Convention
that he had been infected with HIV through a blood test in the
hospital of the correctional colony where he was detained and that
the authorities had failed to carry out an effective investigation
into the incident. The Court will examine the present complaint under
Article 2 of the Convention (see Colak and Tsakiridis v. Germany,
nos. 77144/01 and 35493/05, § 29, 5 March 2009, and Oyal
v. Turkey, no. 4864/05, §§ 51-57, 23 March 2010).
Article 2, in so far as relevant, reads as follows:
“1. Everyone’s right to life
shall be protected by law. ...”
A. The parties’ submissions
- Referring
to the results of the prosecution inquiry, the Government insisted
that the applicant’s allegations about having contracted HIV
through a blood test in the colony hospital were not true. They
pointed to the absence of any evidence that the applicant had ever
crossed paths with the HIV-positive inmate, Mr G. The Government
stressed that the two inmates had arrived at the colony hospital
on different dates, different colony nurses had taken their blood
samples, and the two inmates had never met during any other medical
procedure. Furthermore, colony medical assistant P. had never taken a
blood sample from the applicant. Relying on a certificate issued by
the head of the Sakha (Yakutiya) Republican Department of Execution
of Sentences, the Government indicated that the applicant, a “latent
drug addict”, could have contracted the virus through a dirty
syringe while injecting a drug or any other medicine or could have
been infected “while maintaining relations” with an
HIV-positive inmate, Mr A. In their closing argument, the Government
assured the Court that the internal investigation into the cause of
the applicant’s HIV infection had been conducted promptly and
effectively.
- The applicant insisted that the State should bear
responsibility for his infection with HIV through a syringe which had
previously been used to draw blood from an HIV-positive inmate.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and that it
is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(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 Court reiterates that Article 2 does
not solely concern deaths resulting from the use of unjustified force
by agents of the State but also, in the first sentence of its
first paragraph, lays down a positive obligation on States to take
appropriate steps to safeguard the lives of those within their
jurisdiction (see, for example, L.C.B. v. the United Kingdom,
9 June 1998, § 36, Reports of Judgments and Decisions
1998-III, and Paul and Audrey Edwards v. the United
Kingdom, no. 46477/99, § 54, ECHR 2002 II).
- These
principles also apply in the sphere of detention. Persons in custody
are in a particularly vulnerable position and the authorities are
under an obligation to account for their treatment. The Convention
requires the State to protect the health and physical well-being of
persons deprived of their liberty, for example by adopting
appropriate measures for the protection of their lives and providing
them with the requisite medical assistance (see, inter alia,
Keenan v. the United Kingdom, no. 27229/95, § 111,
ECHR 2001 III; Mouisel v. France, no. 67263/01,
§ 40, ECHR 2002 IX; and McGlinchey and Others
v. the United Kingdom, no. 50390/99, § 46, ECHR
2003-V). The Court also reiterates that where the events in issue lie
wholly or in large part within the exclusive knowledge of the
authorities, as in the case of persons under their control in
detention, strong presumptions of fact will arise in respect of
injuries and death occurring during that detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Çakıcı
v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV, and
Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000-VII).
- Finally, the Court observes that the aforementioned
positive obligations also require an effective independent judicial
system to be set up so that the infringement of the right to life or
to personal integrity can be established and those responsible made
accountable (see, for instance, Powell v. the United Kingdom
(dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio v.
Italy [GC], no. 32967/96, § 49, ECHR 2002-I). The Court
further reiterates that even if the Convention does not as such
guarantee a right to have criminal proceedings instituted against
third parties (see Perez v. France [GC], no. 47287/99, §
70, ECHR 2004-I), the effective judicial system required by Article 2
may, and under certain circumstances must, include recourse to the
criminal law. 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 the above principles to
the present case
(i) Alleged reckless infection with HIV:
establishment of the facts
- The
Court observes that in November 2002, following a series of unclear
or contradictory test results, the applicant was diagnosed with HIV
(see paragraph 19 above). While there was no disagreement between the
parties that the infection had been acquired in detention, they
disputed the exact way in which the virus had been transmitted. The
Government indicated two possible routes for the HIV transmission:
the applicant’s “relations” with an HIV-positive
inmate, and his sharing of contaminated syringes to inject drugs. The
applicant insisted that the illness was the result of the negligent
actions by colony medical assistant P. who, being in a state of
alcohol intoxication, had drawn the applicant’s blood with a
syringe previously used to take a blood sample from an HIV-positive
inmate, Mr G.
- The Court, firstly, notes that,
having investigated the applicant’s complaint of reckless
actions by medical assistant P., the domestic authorities concluded
that Mr P. had not taken the applicant’s blood sample and that
there was no evidence that the applicant had attended any medical
procedure after or together with inmate G. At the same time, it does
not escape the Court’s attention that, having dismissed the
applicant’s version of events, the authorities did not attempt
to identify the exact way in which the applicant’s infection
had been acquired. Neither the applicant’s medical records nor
any other documents submitted by the parties contained any reference
to a history of intravenous drug use by the applicant. Similarly,
there was no evidence that there had been sexual contact between the
applicant and other inmates. The investigating or judicial
authorities did not make any findings in support of the Government’s
view that the above mentioned two routes were ways in which the
infection could have been transmitted. In these circumstances, the
Court entertains doubts as to whether the authorities can be
said to have provided a satisfactory and convincing explanation of
the way in which the applicant was infected with the HIV virus which
put his life in danger.
- While
noting the Government’s failure to corroborate their
allegations with any evidence, the Court is also mindful that the
applicant’s version of events was unreliable and inconsistent.
- Accordingly, in a situation
where the materials in the case file do not provide a sufficient
evidential basis to enable the Court to find “beyond reasonable
doubt” that the Russian authorities were responsible for the
applicant’s contraction of the HIV infection, the Court must
conclude that there has been no violation of Article 2 of the
Convention on account of the authorities’ alleged failure to
protect the applicant’s right to life.
(ii) Alleged inadequacy of the
investigation
- The Court once again reiterates that where lives have
been lost or seriously endangered 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).
- Turning to the circumstances of the present case, the
Court, in the light of the above principles, finds that a procedural
obligation arose under Article 2 of the Convention to investigate the
circumstances in which the applicant had contracted the HIV
infection.
- 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 applicant’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 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, Assenov and
Others v. Bulgaria, 28 October 1998, §§ 102 et
seq., Reports 1998-VIII, and Mikheyev v. Russia,
no. 77617/01, §§ 107 et seq., 26 January 2006).
- In
this connection, the Court notes that the prosecuting authorities
which were made aware of the applicant’s complaint carried out
a preliminary inquiry which did not result in criminal proceedings
(see paragraphs 22-29 above). In the Court’s opinion, the issue
is consequently not so much whether there was an investigation, since
the parties did not dispute that there had been one, but whether it
was conducted diligently, whether the authorities were determined to
establish the facts of the case and, accordingly, whether the
investigation was “effective”.
- The
Court will therefore first assess the promptness of the prosecutor’s
investigation, viewed as a gauge of the authorities’
determination to identify and, if need be, prosecute those
responsible for the applicant’s ill-treatment (see Selmouni
v. France [GC], no. 25803/94, §§ 78 and 79, ECHR
1999-V). In the present case, the Court is mindful of the fact that
the prosecutor’s office promptly opened its investigation into
the alleged infection with the HIV virus, with a little over a month
passing between the applicant’s diagnosis with HIV in November
2002 and the first investigator’s decision of 6 January
2003 refusing the institution of criminal proceedings (see paragraphs
19 and 22 above). Following the Yakutsk Town Court’s order for
an additional inquiry on 11 April 2003, the prosecutor initiated
further investigations. They included the medical records of the
applicant and inmate G., hospital registration logs and questioning
of the colony medical personnel, including the nurses Ms Z. and Ms S.
as well as the medical assistant, Mr P. Inmate G. refused to give any
statements to the investigators. The investigations were completed
already on 25 April 2003, when the prosecutor refused to institute
criminal proceedings (see paragraphs 22-24 above).
- On
9 July 2003 the Town Court granted the applicant’s complaint
and quashed the prosecutor’s decision not to institute criminal
proceedings, listing further investigations to be undertaken by the
investigators. However, this list was not accepted by the Supreme
Court, who directed the Town Court to hear inmate G. before deciding
the matter. As Mr G. refused to testify, the Town Court assessed the
evidence which was available and decided on 15 December 2003 not to
grant the applicant’s complaint. That decision was upheld by
the Supreme Court on 3 February 2004 (see paragraphs 25-29 above.)
- In
the Court’s view, the investigating authorities made diligent
efforts to establish the circumstances of the events. In particular,
the Court observes that they effectively responded to the criticism
laid down by the Yakutsk Town Court in its decision on 11 April
2003, having re-examined the applicant’s medical history and
having studied the hospital registration logs and inmate G.’s
medical records. The investigators also interviewed the witnesses who
could have shed light on the events, including the colony nurses Ms
Z. and Ms S., as well as the applicant and Mr P.
- The
Court is also of the opinion that the facts of the case do not reveal
that the authorities did not thoroughly evaluate the medical evidence
before them, attempting to draw conclusions from it without accepting
too readily any version of events. Furthermore, the Court cannot
overlook the fact that the domestic courts actively responded to the
applicant’s grievances, directing the course of the
investigation. However, with inmate G. refusing to testify, the
courts’ task of establishing the facts was a complicated one.
In these circumstances and given the absence of any evidence, save
for the applicant’s statements, that Mr P. had ever taken a
sample of the applicant’s blood, their conclusion appears
well-founded.
- The
Court therefore considers that the domestic investigation was
effective for the purposes of Article 2 of the Convention. There has
accordingly been no violation of the procedural obligation under that
Convention provision.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACOUNT OF INADEQUATE MEDICAL ASSISTANCE
- The
applicant complained under Article 3 of the Convention that he had
contracted tuberculosis during his detention and that the authorities
had not taken steps to safeguard his health and well-being, having
failed to provide him with adequate medical assistance. Article 3 of
the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government firstly argued that it was impossible to establish “beyond
reasonable doubt” that the applicant had contracted
tuberculosis in detention. They reasoned that a period of several
months can pass between the date when a person contracts the illness
and the date when the illness fully develops. The Government did not
accept that the applicant had ever shared a cell with a person
suffering from a contagious form of tuberculosis.
The possibility of
individuals suffering from contagious forms of tuberculosis being
detained alongside healthy inmates in Russian detention facilities
was fully excluded. They stressed that the applicant could have had
contact with a person with an active form of the illness when he had
stayed at his sister’s flat between his release from detention
in 1996 and his new arrest in 1997.
- Relying
on a copy of the applicant’s medical record, the Government
further submitted that the applicant had been under effective medical
supervision throughout his detention. That supervision had involved
regular medical check-ups prior to his diagnosis with tuberculosis
and HIV, and a prompt and effective response to any health grievances
the applicant had, as well as effective medical treatment resulting
in his clinical cure after the tuberculosis had revealed itself. The
medical personnel of the detention facilities had closely monitored
the applicant after it had been discovered that he had contracted HIV
in order to determine the perfect timing to initiate antiretroviral
therapy. The treatment the applicant had received complied with the
requirements laid down by Russian law and with international medical
standards.
- The
applicant averred that he had not been suffering from tuberculosis
before his arrest in September 1997 and that he had acquired his
illness in detention. He stressed that he had never stayed with his
sister during his short term of liberty between his release in 1996
and his arrest in 1997. The first fluorography test performed upon
his admission to facility no. IZ-14/1 had not shown any symptoms of
tuberculosis. It was more than six months after his arrest that his
illness had been discovered. The applicant insisted that the
Government had provided no evidence in support of their assertion
that he had already been infected with mycobacterium tuberculosis
before his arrest or, for that matter, that he had received the
necessary medical assistance in detention. Citing the Yakutsk Town
Court’s judgment of 12 October 2001 in which the fact of his
detention with an inmate suffering from tuberculosis was confirmed,
the applicant argued that it was more than probable that his
detention alongside that inmate was the cause of his illness.
- Without
providing any details, the applicant further argued that the
authorities’ reaction to his health complaints had been belated
and inadequate. He stressed that regular clinical monitoring and
testing, his placement on an enriched food regimen and the
administration of multivitamins did not constitute an effective
response to his medical condition.
B. The Court’s assessment
(a) 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, for example, Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV). Ill treatment must,
however, attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum 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, among other
authorities, Ireland v. the United Kingdom, 18
January 1978, § 162, Series A no. 25).
- Ill-treatment
that attains such a minimum level of severity usually involves actual
bodily injury or intense physical or mental suffering. However, even
in the absence of these, where treatment humiliates or debases an
individual, showing a lack of respect for or diminishing his or her
human dignity, or arouses feelings of fear, anguish or inferiority
capable of breaking an individual’s moral and physical
resistance, it may be characterised as degrading and also fall within
the prohibition of Article 3 (see Pretty v. the United Kingdom,
no. 2346/02, § 52, ECHR 2002-III, with further references).
- The
State must ensure that a person is detained in conditions which are
compatible with respect for human dignity, that the manner and method
of the execution of the measure of deprivation of liberty 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 (see Kudła v. Poland [GC],
no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov
v. Russia, no. 26853/04, § 208, 13 July
2006). In most of the cases concerning the detention of persons who
were ill, the Court has examined whether or not the applicant
received adequate medical assistance in prison. The Court reiterates
in this regard that even where Article 3 does not entitle a detainee
to be released “on compassionate grounds”, it has always
interpreted the requirement to secure the health and well-being of
detainees, among other things, as an obligation on the part of the
State to provide detainees with the requisite medical assistance (see
Kudła, cited above, § 94; Kalashnikov
v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and
Khudobin v. Russia, no. 59696/00, § 96, ECHR
2006-XII (extracts)).
- The
“adequacy” of medical assistance remains the most
difficult element to determine. The Court insists that, in
particular, authorities must ensure that the diagnosis and care are
prompt and accurate (see Hummatov v. Azerbaijan, nos. 9852/03
and 13413/04, § 115, 29 November 2007; Melnik, cited
above, §§ 104-106; Yevgeniy Alekseyenko, cited
above, § 100; Gladkiy v. Russia,
no. 3242/03, § 84, 21 December 2010;
Khatayev v. Russia, no. 56994/09,
§ 85, 11 October 2011; and, mutatis mutandis,
Holomiov v. Moldova, no. 30649/05, § 121,
7 November 2006), and that, where necessitated by the
nature of a medical condition, supervision is regular and systematic
and involves a comprehensive therapeutic strategy aimed at curing the
detainee’s health problems or preventing their aggravation (see
Hummatov, cited above, §§ 109, 114; Sarban
v. Moldova, no. 3456/05, § 79, 4 October 2005; and
Popov, cited above, § 211).
- On
the whole, the Court reserves a fair degree of flexibility in
defining the required standard of health care, deciding it on a
case-by-case basis. That standard should be “compatible with
the human dignity” of a detainee, but should also take into
account “the practical demands of imprisonment” (see
Aleksanyan v. Russia, no. 46468/06, § 140,
22 December 2008).
(b) Application of the above principles to
the present case
- Turning
to the circumstances of the present case, the Court observes that
following a fluorography test on 30 April 1998, more than six months
after his arrest in September 1997, the applicant was diagnosed as
having tuberculosis, which, according to him, he had not suffered
from prior to his arrest. Indeed, the medical records submitted by
the parties show that he had no history of tuberculosis before his
placement in detention facility no. IZ 14/1 in Yakutsk.
Likewise, no symptoms of tuberculosis were discovered in the period
from 2 October 1997, when the applicant underwent his first
fluorography exam in detention, to 30 April 1998, when the disease
was diagnosed (see paragraph 9 above).
- The
Court accepts the Government’s argument that the authorities
cannot not be held accountable for an applicant contracting
tuberculosis in view of the fact that mycobacterium tuberculosis,
also known as Koch’s bacillus, may lie dormant in the body for
some time without exhibiting any clinical signs of the illness. In
this regard, given the parties’ consent that the contraction of
the infection by the applicant took place prior to 5 May 1998, that
is the date when the Convention entered into force in respect of
Russia, the Court considers that it has no competence ratione
temporis to decide whether the applicant contracted tuberculosis
in detention and whether the Russian authorities were responsible for
the transmission of the infection.
- However, the Court reiterates that irrespective of the
fact whether or not an applicant became infected while in detention,
the State does have a responsibility to ensure treatment for
prisoners in its charge, and a lack of adequate medical assistance
for serious health problems not suffered from prior to detention may
amount to a violation of Article 3 (see Hummatov, cited above,
§§ 108 et seq.). Absent or inadequate medical treatment,
particularly when the disease has been contracted in detention, is
most certainly a subject for the Court’s concern. It is
therefore bound to assess the quality of medical services the
applicant was provided with in the present case and to determine
whether he was deprived of adequate medical assistance as he claims,
and if so whether this amounted to inhuman and degrading treatment
contrary to Article 3 of the Convention (see Sarban, cited
above, § 78).
- The
Court observes that the applicant did not indicate any specific
omissions on the part of the prison medical personnel which had
rendered their services ineffective and inadequate. He limited his
submissions to the general grievance that an HIV-positive inmate
suffering from tuberculosis should not be treated in the way he had
been treated. However, having assessed the evidence, the Court finds
the quality of the medical care provided to the applicant to have
been adequate.
- In
particular, the material available to the Court shows that the
Russian authorities used all existing means for the correct diagnosis
of the applicant’s condition, placed the applicant on an
intensive chemotherapy regimen to fight tuberculosis, thoroughly
considered the question of initiating antiretroviral therapy for the
HIV infection, and, once the tuberculosis process had been arrested,
took the necessary steps to prevent a new onset of tuberculosis by,
inter alia, prescribing appropriate prophylactic treatment and
admitting the applicant to medical institutions for in-depth
examinations. The applicant was subjected to regular and systematic
clinical assessment and monitoring, which formed part of the
comprehensive therapeutic strategy aimed at preventing a relapse. The
Court is unable to find any evidence, and the applicant did not argue
otherwise, that the tuberculosis specialists’ recommendations
as to the frequency of X-ray testing and prophylactic tuberculosis
treatment were disregarded by the medical personnel of the facilities
where he was detained at the time.
- This
conclusion is not altered by the fact that a delay of approximately
two months occurred between the first examination of the applicant by
a tuberculosis specialist on 15 May 1998 when anti-tuberculosis
treatment was prescribed and the applicant’s admission to the
prison hospital for treatment (see paragraph 10 above). While
considering this delay unfortunate, the Court does not find it to be
so grave as to negate the effects of the subsequent successful
treatment which the applicant received throughout the rest of his
detention. The Court’s finding is supported by the fact that in
2001 the applicant was assigned to a significantly lighter regime of
medical assessment as he no longer required active clinical
supervision. The medical record containing the applicant’s
diagnosis of clinical recovery from tuberculosis showed no indication
of a relapse at any time during his detention, thus confirming the
effectiveness of the medical care he received in the detention
facilities.
- Furthermore,
the Court attributes particular weight to the fact that the
facility’s administration not only ensured that the applicant
was attended to by doctors, that his complaints were heard, and that
he was prescribed courses of anti-tuberculosis medication, but they
also created the necessary conditions for the prescribed treatment to
be actually followed through (see Hummatov, cited above, §
116). The Court notes, in particular, that when the applicant refused
to cooperate and resisted treatment, he was offered psychological
support and attention and was provided with clear and complete
explanations about medical procedures, the desired outcome of the
treatment and the negative effects of interrupting the treatment. The
authorities’ actions ensured the applicant’s adherence to
the treatment and compliance with the prescribed regimen.
- The
Court also notes that the authorities efficiently addressed any other
health grievances that the applicant had. His anti-tuberculosis
treatment was adjusted to take account of his concomitant health
problems, including his HIV-positive status and psychological issues,
as well as his personal preferences as to medical procedures to
follow and medicines to take. The authorities efficiently addressed
the issue of newly diagnosed HIV in the applicant, providing him with
adequate counselling and advice. The applicant’s illnesses were
subsequently staged and managed as clinically appropriate. And as
already mentioned, the authorities promptly initiated highly active
antiretroviral therapy, as well as subsequent clinical monitoring of
the development of the infection to appropriately begin the therapy.
- To
sum up, the Court considers that the domestic authorities afforded
the applicant comprehensive, effective and transparent medical
assistance throughout the period of his detention falling under the
Court’s ratione temporis competence. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 (a)
and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The applicant complained under Articles 8 and 34 of
the Convention that the colony administration had interfered with his
correspondence with the Court. The Court will examine the present
complaint under Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government argued that the applicant’s complaint was
inadmissible owing to his failure to raise it before a proper
domestic authority and having regard to the particularly
insignificant character of the alleged violation. They stressed that
the authorities had fully respected the applicant’s right to
communicate with the Court. A single and extremely insignificant
delay of six days in dispatching the applicant’s letter of
13 November 2003 had resulted from a technical mistake and could
not be taken as evidence in support of the applicant’s
submissions.
- The
applicant maintained his complaint, referring to the loss of the
attachments to the letter of 28 November 2002 and a delay in
dispatching the letter of 25 November 2003.
- The Court firstly reiterates its constant case-law
according to which a complaint under Article 34 of the Convention
does not give rise to any issue of admissibility under the Convention
(see Juhas Đurić v. Serbia, no. 48155/06,
§ 72, 7 June 2011, with further references).
- Furthermore, the Court notes that Article 34 of the
Convention imposes an obligation on a Contracting State not to hinder
the right of the individual to present and pursue a complaint
effectively with the Court. While the obligation imposed is of a
procedural nature distinguishable from the substantive rights set out
in the Convention and Protocols, it flows from the very essence of
this procedural right that it is open to individuals to complain of
alleged infringements of it in Convention proceedings (see Manoussos
v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July
2002).
- It is of the utmost importance for the effective
operation of the system of individual application instituted by
Article 34 that applicants should be able to communicate freely with
the Court without being subjected to any form of pressure from the
authorities to withdraw or modify their complaints. In this context,
“pressure” includes not only direct coercion and flagrant
acts of intimidation, but also other improper indirect acts or
contacts designed to dissuade or discourage applicants from using a
Convention remedy (ibid.).
- Having
examined the parties’ submissions and the material available to
it, the Court considers that there is an insufficient factual basis
for a conclusion that there has been any unjustified interference by
State authorities with the applicant’s exercise of the right of
petition in the proceedings before the Court in relation to the
present application. Furthermore, the Court is not prepared to
interpret the authorities’ honest mistake in dispatching the
letter of 13 November 2003, which they promptly and effectively
corrected, as evidence of their interference with the applicant’s
correspondence with the Court.
- Therefore, the Court concludes that the respondent
State has complied with its obligations under Article 34 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant also complained
that he did not have an effective domestic remedy for his complaint
concerning the contraction of tuberculosis in detention, in breach of
Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ submissions
- The Government argued that the
applicant’s complaint was manifestly ill-founded, being linked
to the manifestly ill-founded complaint under Article 3 of the
Convention. In any event, it had been open to the applicant to lodge
a tort action with the Yakutsk Town Court and he had explored that
avenue. The fact that the applicant’s action had been
unsuccessful did not strip that avenue of its effectiveness.
- The applicant maintained his
complaint.
B. The Court’s assessment
- The Court reiterates that
Article 13 of the Convention guarantees the availability at the
national level of a remedy to enforce the substance of the Convention
rights and freedoms in whatever form they might happen to be secured
in the domestic legal order. The effect of Article 13 is thus to
require the provision of a domestic remedy to deal with the substance
of the relevant Convention complaint and to grant appropriate relief,
although Contracting States are afforded some discretion as to the
manner in which they conform to their Convention obligations under
this provision. The scope of the obligation under Article 13 varies
depending on the nature of the applicant’s complaint under the
Convention. Nevertheless, the remedy required by Article 13 must be
“effective” in practice as well as in law, in particular
in the sense that its exercise must not be unjustifiably hindered by
the acts or omissions of the authorities of the respondent State (see
Menteÿ and Others v. Turkey,
28 November 1997, § 89, Reports
1997 VIII).
- Turning to the circumstances of
the present case, the Court observes that the applicant lodged a tort
action against State officials, arguing their liability for damage
caused to his health by his contraction of tuberculosis. In his
application to the Court the applicant argued that the remedy of a
tort action was not sufficiently effective to comply with Article 13
of the Convention, as it did not provide any redress. It is apparent
from the foregoing that the Court must examine whether the judicial
avenue for obtaining compensation for the damage sustained by the
applicant represented an effective, adequate and accessible remedy
capable of satisfying the requirements of Article 13 of the
Convention.
- The
Court observes that Russian law undoubtedly afforded the applicant
the possibility of bringing tort proceedings against the State. The
applicant availed himself of that possibility by seeking compensation
for the damage he had sustained on account of his contraction of
tuberculosis. The domestic courts at two levels of jurisdiction
examined his claims and found them to be manifestly ill-founded in
view of the absence of any evidence that the applicant had been
infected with tuberculosis through the fault of the authorities. The
applicant’s dissatisfaction with the outcome of the proceedings
does not in itself demonstrate that a tort action was an ineffective
remedy for the purposes of Article 13 (see Murray
v. the United Kingdom [GC], 28 October 1994, §
100, Series A no. 300 A, and Buzychkin v. Russia,
no. 68337/01, § 74, 14 October 2008).
- The
Court therefore concludes that the remedy available to the applicant
satisfied the conditions laid down in paragraph 89 above. It follows
that the complaint under Article 13 is manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention, and that it
must be rejected pursuant to Article 35 § 4.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the Court has examined the other complaints submitted by the
applicant. However, having regard to all the material in its
possession, and in so far as these complaints fall within the Court’s
competence, it finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant’s infection with HIV in detention and the
authorities’ failure to effectively investigate the incident
admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 2 of the Convention on account of the applicant’s
contraction of the HIV virus in detention;
- Holds that there has been no violation of
Article 2 on account of the authorities’ failure to carry out a
thorough and expeditious investigation into the applicant’s
complaint concerning his infection with HIV;
- Holds that the respondent State has not failed
to comply with its obligations under Article 34 of the
Convention.
Done in English, and notified in writing on 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
