FIRST SECTION
CASE OF
ANDREY GORBUNOV v. RUSSIA
(Application no.
43174/10)
JUDGMENT
STRASBOURG
5 February 2013
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 Andrey Gorbunov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 15 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
43174/10) 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 Andrey Vitalyevich Gorbunov (“the
applicant”), on 2 August 2010.
The applicant was represented by Mr R. Valiullin,
a lawyer practising in Izhevsk. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
On 5 May 2011 the application was given priority
(Rule 41 of the Rules of Court) and was communicated to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1970 and is serving a
sentence of imprisonment in the Kurgan Region.
He was arrested on 26 February 2009 in the town
of Izhevsk on suspicion of drug trafficking.
The applicant suffers from heroin addiction,
chronic infectious endocariditis, tricuspid insufficiency and hepatitis C. From
27 February 2009 to 10 July 2010 he was detained in detention centre
no. 18/1 in the Udmurtiya Region, and in hospitals for detainees.
On 16 April 2009 the
applicant sought release, referring to a deterioration in his health and the
unavailability of medical assistance in the detention facility, which, in his
submission, would lead to his death. He also claimed that he required urgent
surgery. The investigator in charge of the criminal case dismissed the
application for release, considering that before his arrest the applicant had
had “enough time to obtain adequate medical care in the town of Perm as regards heart surgery”.
On 23 April 2009 the Industrialniy District Court
of Izhevsk examined the investigator’s request for the extension of the
applicant’s detention. The court examined the defence’s arguments concerning
his state of health, and concluded that they were insufficient grounds for
dismissing the request since it had not been established that the applicant’s
medical condition was incompatible with detention.
Another extension request was examined on 16 July
2009. The court granted it, having concluded that there were no impediments to
the applicant’s detention in a remand centre; the applicant’s medical
condition, in itself, did not require release because the applicant had been,
and continued to be, provided with medical care in detention. The nature of the
treatment and compliance with it were not specified.
While still in detention, the applicant was
admitted to a hospital for treatment from 28 July to 20 August 2009 in connection
with his chronic infectious endocarditis and tricuspid insufficiency.
The criminal case against the applicant was
submitted for trial in the District Court. On 25 August 2009 the applicant
asked the judge to order a forensic expert examination to determine whether he
needed in-patient treatment or surgery, and whether he was fit to participate
in the court hearings.
On the same day, the senior medical officer at
the remand centre issued a certificate, indicating that the applicant’s medical
condition was being monitored by the medical staff of the remand centre and no
in-patient treatment in a hospital was required; a consultation by a
cardiologist was to be provided “as scheduled”, or in the case of deterioration
in the applicant’s medical condition.
Having regard to the above certificate, the
judge dismissed the applicant’s request. The judge considered that, as
confirmed by the applicant, his state of health was satisfactory; the attending
doctor had also stated that the applicant was fit to take part in the
proceedings; and that he was being provided with medical care. The nature of
the treatment and compliance with it were not specified.
Apparently thereafter, the judge wrote to the
administration of the remand centre where the applicant was then detained,
requesting an opinion concerning the need for a forensic expert examination of
the applicant by cardiologists and rheumatologists in order, eventually, to
determine whether any surgery or hospitalisation was required; whether the
applicant’s current state of health was compatible with detention; and whether
the applicant was fit to take part in court hearings.
In addition
to the certificate of 25 August 2009, the senior medical officer of the remand
centre wrote to the trial judge on 28 August 2009 indicating that the applicant
did not require any urgent surgery, and that he was receiving out-patient
monitoring by the medical staff of the remand centre and had four check-ups per
year. The nature of the treatment and compliance with it were not specified.
Medical assistance had to be provided to the
applicant during court hearings on thirteen occasions between 24 August 2009
and 30 March 2010.
On 12 October 2009 the presiding judge
wrote to the remand centre inquiring whether the applicant was fit to continue with
his participation in the trial hearings and whether a medical examination by
cardiologists and rheumatologists was necessary. The remand centre replied on
19 October 2009 that the applicant was fit to participate in hearings
but only if they were of a limited duration and held in a well-aired room. It
was also stated that, noting the deterioration in the applicant’s health and
the need to decide whether urgent surgery was necessary, the applicant should
be examined by rheumatologists.
On 13 November 2009 the district prosecutor’s
office asked the trial judge to order an examination of the applicant by a
cardiologist. The applicant suggested that the following issues be raised
during such an examination: whether he needed in-patient treatment and urgent
surgery (with an indication of the time-frame, in the case of an affirmative
reply), and whether he was fit to participate in the trial and remain in a
detention facility.
On the same day, the trial judge commissioned an
expert report, to be drawn up by the State office for forensic expertise. The
expert was invited to determine whether the applicant was fit to participate in
the trial (and under what conditions). The remaining issues raised by the
applicant were dismissed as unrelated to the trial.
On 30 November 2009 the applicant
was examined by a cardio-rheumatologist, who adjusted his previous prescription
for medication. Also in November 2009, the applicant had an echocardiogram and an
electrocardiogram.
A panel of medical
professionals at the State office for forensic expertise issued the following
expert report:
“... Having examined the available documents, we consider that [the
applicant’s] heart disease is now in a phase of stable pathology and that he is
fit to take part in court hearings under normal conditions (as regards microclimate
and duration) with the necessary compliance with the recommendations made by
the cardiologist on 30 November 2009, in particular as regards his intake
of medication.”
On 9 December 2009 a
panel of medical professionals at prison hospital no. 8 also issued a
report, which reads as follows:
“... In view of the degree of damage to the cardiac valves, and
considering the possible consequences of their being affected, we recommend that
detention be replaced by another preventive measure which will facilitate [the
applicant’s] admission to a specialised cardiac hospital for surgery”.
On 25 December 2009 the District Court examined
the applicant’s renewed application for release. Having examined the above-mentioned
medical reports, the court gave weight to the report of the State office for forensic
expertise and maintained the applicant’s detention.
On 7 April 2010 the applicant was convicted of
drug trafficking and sentenced to five years and three months’ imprisonment.
On 12 May 2010 the applicant was examined by a
cardiologist.
The applicant sought a consultative opinion from the Forensic Medicine
and Law Unit of the St Petersburg Medical University as to the appropriate
treatment and its availability in the detention facility. Having examined a
number of documents (see paragraph 20 above), in their consultative opinion dated
11 June 2010 a group of three medical specialists made the following findings:
“Long-term prognosis in respect of infectious endocartitis is
based, to a large extent, on the impairment of cardiac function ... The damage
to the valvic structure of the heart ... discloses bi-ventricular (total)
chronic heart decompensation, which is an aggravated type of heart
decompensation. This is accompanied by pulmonary arterial hypertension, which is
a factor of progressing heart decompensation ... We are unable to make any
further findings regarding a prognosis because the most recent available
material dates back to November 2009. However, it is clear that the disease
will inevitably progress in the absence of adequate treatment.
As to treatment, the only radical method [for the applicant’s situation]
is cardiac surgery. This method may only be ruled out where there is a medical contraindication
to surgery ...
Under the relevant legal provisions, an in-patient examination
in a specialised cardiac facility is necessary for deciding whether there is
any such contraindication, and for determining the appropriate type of surgery
and the corresponding timeframe and conditions ...
[The applicant] should no longer be treated in the medical unit
of a detention facility because, under the relevant regulations, such a medical
unit is suitable only for in-patient admission and care for no longer than
fourteen days, for the temporary isolation of infectious patients, [and] for
recovery treatment after discharge from a hospital ...”
On 22 June 2010 the appeal court upheld the
sentence and it became final.
On 25 June 2010 the applicant’s medical record
was sent to the Bakulev cardiac hospital in order to obtain a prescription for surgery,
which is an instruction written by a medical practitioner that authorises a
patient to be issued with treatment.
On 27 June 2010 the prison medical unit issued a
report stating that there were no contraindications to the surgery and
recommending that it should be carried out in a specialised cardiology centre.
On 10 or 11 July 2010 the applicant was
transferred from prison no. 8 in the Udmurtiya Region, which apparently had
an overpopulation problem, to prison no. 1 in the Kurgan Region. He
arrived there on 29 July 2010 and was admitted to the tuberculosis unit of the prison. On the same day, the
applicant’s mother received formal notification of the prescription for surgery
from the cardiac hospital stating that the applicant should be admitted to it
by 25 August 2010.
In the meantime, on 14 July 2010
the applicant’s counsel brought proceedings under Chapter 25 of the Russian
Code of Civil Procedure against detention centre no. 18/1 before the
Pervomayskiy District Court of Izhevsk. The applicant argued that, despite the
medical reports of 9 December 2009 and 11 June 2010 (see paragraphs 22 and
26 above), the staff of the detention facility had authorised his transfer to a
detention facility in a distant region of Russia and failed to inform his
relatives of his planned or actual transfer. The court noted that the
applicable legislation required that a convicted person be detained in the
region where he had been convicted or resided. He could be transferred to
another region (i) in exceptional circumstances relating to his health or
security, or at his own request; or (ii) if the right type of facility was not
available or there was shortage of places in the region. In August 2010 the
District Court rejected the applicant’s claims.
On 9 August 2010 prison no. 1 received a “quota
prescription” which allowed the applicant to be admitted to the Bakulev hospital
for cardiac surgery in Moscow on 25 August 2010. On 10 August 2010 the
detention facility asked the supervising prison department for permission to
convey the applicant from Kurgan to Moscow. On 17 August 2010 the “operational
unit” of the department gave its approval. However, since the approval of the
“medical unit” of the department could not be obtained in time, the detention
facility reached an agreement with the Bakulev hospital to re-schedule the
applicant’s admission for 7 December 2010.
According to the Government and an information
note from prison no. 1, the tuberculosis unit had access to services
provided by medical professionals at the regional cardiac hospital and the
regional civic hospital.
From October 2010 to an unspecified date in 2010
the applicant was kept in prison no. 2 in the Kurgan Region. Fresh approval
was sought from the medical unit of the supervising prison department.
On 8 December 2010 the medical staff of prison
no. 1 concluded that the applicant “required to be conveyed to the Bakulev
hospital in Moscow, the dates for transfer to be specified later on”. Apparently,
at the request of the medical staff, the applicant’s admission to the cardiac
hospital was rescheduled for 16 December 2010. It was subsequently rescheduled,
for unspecified reasons, for 1 February 2011.
According to the
Government, “having detected violations of the law in relation to [the
applicant’s] transfer to a medical facility, the regional prosecutor issued a
decision and a warning to avoid similar shortcomings”.
The Government submitted to the Court a
certificate issued on 1 August 2011 by the acting director of prison
no. 1 which stated that the applicant’s life was at no immediate risk and
his disease was in remission.
Between October 2011 and May 2012 the applicant
was kept in the therapeutic unit of the hospital attached to Moscow detention
centre no. 1.
It can be seen from a certificate issued on 18
October 2011 by the Bakulev hospital that it was recommended that a coronary
angiography be carried out and that the applicant undergo surgery with extracorporeal
circulation.
In a letter of 23 November 2011
the Bakulev hospital provided the following information to the Moscow remand centre:
“Surgery may be provided to [the applicant] in the Bakulev hospital
under general conditions. His admission to the hospital is to include surgery with
extracorporeal circulation in a sterile surgical unit, as well as the patient’s
placement in a reanimation and intensive therapy unit during the immediate
post-surgery period. This admission will also involve his subsequent presence
in the surgery unit. The premises of the Bakulev hospital are not suitable for the
admission of patients under a detention regime. The hospital cannot make
arrangements for the treatment of [the applicant] under the supervision of four
officers from your facility.”
The Government
submitted a certificate dated 2 August 2012 issued by the acting chief officer
of prison no. 2. It reads as follows:
“... [The applicant] received a consultation from a cardiac
surgeon from the Bakulev hospital in Moscow on 18 October 2011 ... Surgery with
extracorporeal circulation was recommended (after a coronary angiography).
However, admission to the hospital was subsequently refused, owing
to its inability to handle patients who were detainees.
On 29 May 2012 [the applicant] was seen by a cardiac surgeon
from Moscow hospital no. 15. Surgery was not recommended because of the [applicant’s]
stable condition, as well as on account of the high risk of complications
during the post-surgery period while in detention.”
There is no indication that thereafter there has
been any significant change of the circumstances relating to the issue of
medical care. It appears that the applicant is currently being kept in prison
no. 2 in the Kurgan Region.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Chapter 25 of the Code of Civil
Procedure (CCP) sets out the procedure for the judicial examination of
complaints about decisions, acts or omissions of the State, municipal
authorities or officials. Pursuant to Ruling no. 2 of 10 February 2009 by
the Plenary Supreme Court of the Russian Federation, complaints by suspects,
defendants and convicts about inappropriate conditions of detention must be
examined in accordance with the provisions of Chapter 25 (point 7).
A complaint about an act or decision by any
State authority which he believes has breached his rights or freedoms may be
lodged by a citizen either with a court of general jurisdiction or by sending
it to the directly superior official or authority (Article 254). The complaint
may concern any decision, act or omission which has violated the citizen’s rights
or freedoms, has impeded the exercise of his rights or freedoms, or has imposed
a duty or liability on him (Article 255).
The complaint must be lodged within three months
of the date when the citizen learned of the breach of his rights. The time-limit
may be extended for valid reasons (Article 256). The complaint must be examined
within ten days (Article 257). The burden
of proof as to the lawfulness of the contested decision, act or omission lies
with the authority or official concerned. If necessary, the court may obtain
evidence on its own initiative (point 20 of Ruling no. 2).
If the court
finds the complaint justified, it issues a decision requiring the authority or
official to fully remedy the breach of the citizen’s rights (Article 258
§ 1). The court determines the time-limit for remedying the violation with
regard to the nature of the complaint and the efforts that need to be deployed
to remedy the violation in full (point 28 of Ruling no. 2).
The decision is dispatched to the head of the authority concerned, to the
official concerned or to their superiors, within three days of the date it
becomes enforceable. The court and the complainant must be notified of the
enforcement of the decision no later than one month after its receipt
(Article 258 §§ 2 and 3).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained about the allegedly
inadequate medical care in detention, in particular, that the prison
authorities had obstructed his access to surgical treatment, thus putting his
life at risk. He also mentioned, in general terms, the conditions of transport and
his transfer to a distant region of Russia for the serving of his prison term.
Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. The parties’ submissions
The Government argued that, in addition to his
complaints before the prosecutors, the applicant should have brought court
proceedings against the detention facilities in relation to his complaint of
inadequate medical care. In particular, he could have brought an action under
Chapter 25 of the Code of Civil Procedure or a claim for compensation in respect
of damage to his health and/or non-pecuniary damage. They noted that the Court
itself had previously dismissed complaints relating to medical care for
non-exhaustion of domestic remedies (see Popov and Vorobyev v. Russia, no. 1606/02, § 67, 23 April 2009).
As to the substance of the complaint, the
Government affirmed that between 2009 and 2011 the applicant had been provided
with all requisite medication; there had been no indication of the worsening of
his medical condition and there was no urgency for the carrying out of the
surgery. The applicant’s detention had been and remained compatible with his
state of health. At the same time, the Government admitted that unspecified “violations
of law in relation to [the applicant’s] transfer to a medical facility” had
been detected and that the regional prosecutor had issued “a decision and a
warning to avoid similar shortcomings”. Subsequently, the Government submitted
that in October 2011 the applicant had been examined by a cardiac surgeon from
the Bakulev hospital in Moscow; that, having examined the applicant in May
2012, another cardiac surgeon had stated that, at that time, no immediate
surgery was recommended; and that the applicant was not eligible for early release
for health-related reasons (see paragraph 41 above).
The applicant submitted that both an independent
expert and a medical professional at the detention facility had acknowledged
that he required admission to a specialised cardiac hospital for possible
surgery (see paragraph 26 above). The applicant insisted that such
recommendations required that he be released from detention pending trial and,
later on, be absolved from serving the prison term to which he had been sentenced
by the trial court. The applicant’s transfer to a distant region had deprived
him of an opportunity to benefit from the formal appointment for surgery
arranged in late 2010.
B. The Court’s assessment
1. Admissibility
The Court observes at the outset that the applicant’s
reference to the conditions of transport lacks detail and is unsubstantiated.
The applicant has not shown that any established facts relating to his
transport, for instance between the detention facilities in the two regions of Russia, were such as to disclose treatment in breach of Article 3 of the Convention.
As to the issue of medical care, the Court
observes that, despite the Government’s assertion, the applicant did bring
court proceedings under Chapter 25 of the CCP when he challenged his transfer
to a detention facility in a distant region of Russia, a decision which impeded
his admission to a cardiac hospital in Moscow (see paragraph 31 above). The
Government have not specified what other type of claim the applicant could
usefully have raised in such proceedings under the CCP (see paragraphs 43-47 above).
In addition to the above proceedings and a
number of complaints to various law-enforcement and executive
authorities, the applicant lodged a number of complaints with a court, seeking
release and/or his transfer to a hospital. The domestic authorities took
cognisance of the merits of the complaints, sought opinions on the appropriateness
of the applicant’s detention in the conditions of the regular detention
facility, and based their conclusions on medical reports and the assurances of
the facility authorities, taking the view that the conditions in the detention
facility were appropriate for the detention of the applicant. Thus, the
authorities were made aware of the applicant’s allegations relating to his
medical care.
The Court observes that the Government did not
argue that, in pursuing the above avenues of judicial review, the applicant had
removed from the courts the option of examining the relevant issues.
As to the Government’s argument pertaining to
the applicant’s failure to lodge a tort action against a detention facility, the
Court observes that the Government merely suggested that a tort action was also
a formal judicial avenue available to the applicant. The Court, however, does
not find it unreasonable that in a situation where the domestic courts had
analysed the applicant’s complaint of inadequate medical care a number of times,
he did not lodge a separate action in accordance with the formal tort procedure
under the Russian Civil Code. In circumstances where the domestic courts had examined
and dismissed his complaints, finding that his detention fully complied with
the domestic legal norms, the Court does not consider that the applicant was
also required to bring a tort action (see Arutyunyan v. Russia, no.
48977/09, § 64, 10 January 2012).
The Court also considers that, to be adequate,
remedies for the implementation of responsibility in respect of a State should
correspond to the nature of the complaints. Given the continuous nature of the
violation alleged by the applicant, the Court considers that an adequate remedy
in such a situation would imply a properly functioning mechanism for monitoring
the conduct of the national authorities with a view to putting an end to the
alleged violation of the applicant’s rights. In the Court’s view, a purely
compensatory remedy would not suffice to satisfy the requirements of
effectiveness and adequacy where there is an alleged continuous violation of a
Conventional right. Lastly, the Court observes that the Government’s remaining
arguments lack detail or substantiation. Therefore, the Government’s
non-exhaustion plea should be dismissed.
The Court notes that the applicant’s complaint
relating to medical care is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) General principles
The Court reiterates that under Article 3 of the
Convention the State must ensure that a person is detained in conditions which
are compatible with respect for his human dignity, that the manner and method
of the execution of the measure do not subject him to distress or hardship of
an intensity exceeding the unavoidable level of suffering inherent in detention
and that, given the practical demands of imprisonment, his health and
well-being are adequately ensured by, among other things, providing him with
the requisite medical assistance (see Kudła v. Poland [GC], no.
30210/96, § 94, ECHR 2000-XI).
Where complaints are made about a failure to
provide necessary medical assistance in detention, it is not indispensable for
such a failure to have led to a medical emergency or have otherwise caused
severe or prolonged pain in order for the Court to find that a detainee was
subjected to treatment incompatible with the guarantees of Article 3 (see Ashot Harutyunyan
v. Armenia, no. 34334/04, § 114, 15 June 2010). Article 3 cannot be
interpreted as laying down a general obligation to release a detainee on health
grounds, save for in exceptional cases (see Papon v. France (no. 1)
(dec.), no. 64666/01, ECHR 2001-VI, and Priebke v. Italy
(dec.), no. 48799/99, 5 April 2001), or to place him in a civil
hospital to enable him to obtain a particular kind of medical treatment.
However, a lack of appropriate medical treatment may raise an issue under
Article 3 even if the applicant’s state of health does not require his immediate
release.
The national authorities must ensure that
diagnosis and care in detention facilities, including prison hospitals, are
prompt and accurate, and that, where necessitated by the nature of a medical
condition, supervision is regular and involves a comprehensive therapeutic
strategy aimed at ensuring the detainee’s recovery or at least preventing his
or her condition from worsening (see Sakhvadze v. Russia, no. 15492/09,
§ 83, 10 January 2012).
On the whole, while taking into consideration
“the practical demands of imprisonment”, the Court reserves sufficient
flexibility in deciding, on a case-by-case basis, whether any deficiencies in
medical care were “compatible with the human dignity” of a detainee (see Aleksanyan
v. Russia, no. 46468/06, § 140, 22 December 2008).
The Court reiterates that an unsubstantiated
allegation of no, delayed, or otherwise unsatisfactory medical care is normally
not sufficient to disclose an issue under Article 3 of the Convention. A
credible complaint should normally include, among other things, sufficient
reference to the medical condition in question, medical prescriptions that were
sought, made or refused, and some evidence - for instance, expert reports -
capable of disclosing serious failings in the applicant’s medical care (see Valeriy
Samoylov v. Russia, no. 57541/09,
§ 80, 24 January 2012).
The Court also reiterates that its task is to
determine whether the circumstances of a given case disclose a violation of the
Convention in respect of an applicant, rather than to assess in abstracto
the national legislation of the respondent State, its regulatory schemes or the
complaints procedure used by an applicant. Thus, mere reference to the domestic
compliance with such legislation or schemes, for instance as regards licensing
of medical institutions or qualifications of medical professionals, does not
suffice to oppose an alleged violation of Article 3 of the Convention. It is
fundamental that the national authorities dealing with such an allegation apply
standards which are in conformity with the principles embodied in Article 3 (ibid., § 81).
In accordance with Article 19 of the Convention,
the Court’s duty is to ensure the observance of the engagements undertaken by
the Contracting Parties to the Convention. In its assessment of issues under
Article 3 of the Convention, the Court gives thorough scrutiny to the question of
the authorities’ compliance with the prescriptions issued by medical
professionals, in the light of the specific allegations made by an applicant
(see Vladimir Vasilyev v. Russia, no. 28370/05, § 59, 10 January 2012).
(b) Application of the principles to the present case
The applicant was arrested in February 2009 and
detained in relation to a criminal case. In April 2010 he was convicted and
sentenced to five years and three months’ imprisonment. It appears that his
heart disease pre-dates his detention.
The Court will focus on the main thrust of the
applicant’s grievance, which relates to the alleged failure of the domestic authorities,
since 2009, to take him to a specialised cardiac hospital in Moscow.
The Court observes in this connection that the
necessity for this measure has been acknowledged on several occasions at the
domestic level from December 2009. It is clear that, beyond being desirable, this
was considered to be a medical necessity for the proper planning of eventual
surgery. This is confirmed by the consultative medical report which was
obtained by the applicant in June 2010 and whose conclusions were not contested
by the respondent Government (see paragraph 26 above). That report stated, in
particular, that an in-patient examination in a specialised cardiac facility
was necessary for deciding whether there was any contraindication to surgery, and
for determining the appropriate type of surgery, its timeframe and conditions.
The report also indicated that the treatment of the applicant in the medical
unit of a detention facility was no longer appropriate.
Even before the report, in December 2009, the
prison medical staff had recommended that detention be replaced by another
preventive measure in order to facilitate the applicant’s admission to a
specialised cardiac hospital for surgery (see paragraph 22 above).
Having regard to the information available, the
Court is satisfied that the applicant made out a credible complaint which was
capable of disclosing serious failings in his medical care (see Valeriy
Samoylov, cited above, § 80).
Relying on the available medical
documents, the respondent Government affirmed in substance that the surgery
recommended for the applicant was not a matter of emergency/urgency and thus
its delay did not entail the pain or suffering required for it to reach the
“minimum threshold of severity” to fall with the scope of Article 3 of the
Convention.
. It is noted that the applicant
mentioned the urgency of surgery as an argument in support of his application
for release in April 2009. However, the available material does not disclose
that this argument was corroborated by any medical evidence at the time. In
August 2009 the senior medical officer of the remand centre wrote to the
trial judge affirming that the applicant did not require any urgent surgery. Later on, in November 2009, the applicant
unsuccessfully sought that a forensic expert be asked to clarify whether
surgery was a matter of urgency. The trial judge considered that such a matter
was unrelated to the trial or the assessment of the applicant’s ability to
participate in it.
. For its part, the Court considers
that the material in its possession does not confirm that during the period
under consideration surgery was a matter of averred urgency (see, by way
of comparison, Gadamauri and Kadyrbekov v. Russia, no. 41550/02, §§ 43-53, 5 July 2011, and Geppa v. Russia,
no. 8532/06, § 82, 3 February 2011). However, the Court reiterates that the absence
of a medical emergency does not necessarily exclude the possibility of a
violation of Article 3 of the Convention. Therefore, the Court still has
to determine whether the course of action adopted by the national authorities vis-à-vis
the applicant’s medical condition was such as to offend the requirements of
Article 3 of the Convention.
. Fortunately, the delay in the
applicant’s admission to a specialised cardiac hospital has not led to any
dramatic consequences (see, by contrast, Anguelova v. Bulgaria, no. 38361/97, § 125, ECHR 2002-IV, and Romokhov v. Russia, no. 4532/04, § 93, 16 December 2010). The Court does not exclude that certain delays
in medical care, although unfortunate, may be without any significant physical
or psychological impact on the person concerned or, for instance, on the course
of treatment (see Shchebetov v. Russia, no. 21731/02, § 74, 10 April 2012, and, by
contrast, Vasyukov v. Russia, no. 2974/05, § 75, 5 April 2011).
It can be seen from the information submitted by
the Government that the applicant had a consultation with a cardiac surgeon
from the Bakulev hospital in Moscow in October 2011.
At the same time, it is common ground between
the parties that the purpose of the applicant’s admission to the specialised
facility was, inter alia, to clarify the question of the urgency of
surgery. The Court has no reason to disagree that the appropriate course of action
in respect of the applicant’s medical condition was admission to such a
facility, together with an examination by a cardiac surgeon. While the
Court accepts that the authorities took certain steps aimed at providing the
applicant with specialist treatment outside the prison system, the applicant’s
consultation with a cardiac surgeon was postponed between 2009 and October 2011.
In fact, the Government mentioned that certain
shortcomings, in particular in respect of the chain of communication between
various units of the supervising prison department and the detention
facilities, had contributed to a situation in which the applicant could
effectively not be taken to the cardiac hospital, because of the need to comply
with the time-related and other constraints imposed by the “quota prescription”
procedure.
The Court has been unable to determine whether
the practical arrangements for the consultation in May 2012, and the earlier
one in October 2011, were such as to fully comply with the recommendations made
in the 2010 report.
The Court considers that as regards the period
of time under review, the applicant’s medical condition did not receive an
adequate and timely response from the domestic authorities, essentially on
account of logistical difficulties. It does not appear that a reasonable effort
was made to deal with these difficulties, with due regard to the gravity of the
applicant’s medical condition (see Wenerski v. Poland, no. 44369/02, § 68,
20 January 2009).
Having made the above findings, the Court cannot
overlook that both the most recent medical opinions (of October 2011 and May
2012) which were made available to it essentially mention the applicant’s
detainee status as a current or eventual impediment to carrying out surgery
(see paragraph 41 above). As stated by the Bakulev hospital, it was
impracticable to ensure the permanent presence of convoy officers during and
after the surgery to supervise the applicant (see paragraph 40 above). At
the same time, the Government conceded that the applicant’s medical condition
did not require early release from detention on health grounds. In this
connection, the Court cannot but reiterate the principle under which it is for
the national authorities to organise the internal legal system in such a way as
to ensure compliance with the State’s Convention obligations. This also applies
to the issue of medical care in the context of the practical demands of
imprisonment. The
national authorities must ensure that diagnosis and care in detention
facilities are prompt and accurate, and that, where necessitated by the nature
of a medical condition, supervision is regular and involves a comprehensive
therapeutic strategy (see Sakhvadze, cited above, § 83).
In May 2012 the applicant was consulted by a
cardiac surgeon who considered that surgery was not indicated owing to the
applicant’s stable condition. The Court assumes that that reflected the real
medical condition of the applicant at the material time. However, beyond mere
conjecture, it appears that the authorities’ attitude towards the applicant’s
medical condition was, to some extent, dependent on their unwillingness or
inability to make the practical arrangements for surgery.
The Court considers that the relative gravity of
the applicant’s condition and the authorities’ unjustified delay in putting into
practice their own decision to take the applicant to the specialised cardiac
hospital, at least as regards the period before May 2012, disclosed a serious
failing on the part of the respondent State leading to a situation in which the
applicant could be said to have been subject to distress or hardship of an
intensity exceeding the unavoidable level of suffering inherent in detention. The
Court considers that the authorities’ failing amounted to inhuman and degrading
treatment within the meaning of Article 3 of the Convention.
In view of the above conclusions, the Court does
not find it necessary to delve into the question of whether the applicant’s
medical condition was incompatible with his continued detention pending trial
and/or after his conviction by the trial court.
. There has been a violation of
Article 3 of the Convention in the circumstances of the present case.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 50,000 euros (EUR) in
respect of non-pecuniary damage.
The Government disagreed.
The Court considers that the applicant must have
suffered physical pain and mental anguish in relation to his serious medical
conditions. It must be accepted that he also suffered distress, frustration and
anxiety on account of the above-mentioned failing of the national authorities
in respect of his medical care. Having regard to the nature of the violation,
the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage,
plus any tax that may be chargeable.
B. Costs and expenses
Since the applicant made no claim in respect of
costs and expenses, the Court makes no award.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint relating to medical
care admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five
hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 5 February 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefèvre
Deputy Registrar President
