In the case of E.A. 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,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 30 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
44187/04) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Uzbek national, Mr E.A. (“the applicant”), on 9 November
2004. The President of the Section decided that the applicant’s name should not
be disclosed (Rule 47 § 3 of the Rules of Court).
The applicant was represented by Mr Z. Zhulanov,
a lawyer practising in Perm. The Russian Government (“the Government”) were
represented by Mr A. Savenkov and then by Mr G. Matyushkin, acting and current
Representatives of the Russian Federation at the European Court of Human Rights
respectively.
The applicant alleged, inter alia, that the
deficiencies in his medical care in detention between 2003 and 2006 amounted to
a violation of Article 3 of the Convention.
Following a preliminary examination of the
admissibility of the application, on 16 June 2008 the judge appointed as
rapporteur under Rule 49 § 2 of the Rules of Court requested the
respondent Government to submit a copy of the applicant’s medical file,
including information on HIV-related medication and any recent (institutional
or, preferably, independent) assessment of his medical conditions, if
available. On 28 July 2008 the Government submitted a number of documents from
the applicant’s medical file.
On 30 January 2009 the application 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 1966. After his release
from detention in 2008 the applicant resided in the town of Perm.
The applicant arrived in Russia from Uzbekistan in 2002 or 2003. He was arrested on 11 August 2003 in the town of Perm in relation to criminal proceedings against him (see paragraph 25 below).
A. Medical
care in detention
During his admission to Perm detention centre no.
1 in August 2003 the applicant had a check-up and was questioned about his past
illnesses. According to the documents submitted by the Government, since the 1990s
the applicant had been suffering from pulmonary tuberculosis and had received
treatment in Uzbekistan. According to the applicant, in 1995 and 1998 he had
pneumonia and had no pulmonary tuberculosis before his arrest in August 2003.
The applicant had a chest
fluorography examination in the detention centre and was examined by a chest
physician who prescribed treatment (such as ethambutol and B6 vitamin) in
relation to his tuberculosis. On 18 August 2003 a blood sample from
the applicant was submitted for HIV testing (an “enzyme-linked immunosorbent
assay”). An additional similar test and a confirmatory test (“western blot”) were
carried out on 3 and 4 September 2003 respectively.
The case file contains a
document dated 9 September 2003 which appears to be the record of the HIV-related
initial physical examination (involving, inter alia, vital signs, lymph
nodes, skin, thorax and lungs). The applicant’s weight was 73 kg. The reference
to the HIV stage is not legible. The next check up was scheduled for February
2004. The Government also submitted the applicant’s “epicrisis” record for 2003,
which indicates HIV stage 2Б under the domestic classification (see
paragraph 29 below). It is indicated in the record that during 2003 the
applicant did not request any treatment or medication. Another document
entitled “Plan for treatment in 2003” indicated that the applicant was to be examined
in February 2004. This document did not specify any treatment, including
HIV-related medication.
It can be seen from the typed copy of the
applicant’s medical file that on several occasions in late 2003 and early 2004 he
was examined by a chest physician who maintained his medication in relation to
tuberculosis.
After the closure of the criminal
proceedings against him (see paragraph 25 below), in June 2004 the applicant
was transferred to prison no. 12 in the Perm region. Subsequently, he also spent
periods of time in prison no. 9, as well as in the psychiatric and other units
of the hospital for detainees (August - October 2004, February - March 2005,
July 2005 and several months in 2006 and 2007). The applicant was treated, inter
alia, for tuberculosis, gonorrhoea, haemorrhoids, hepatitis C, a psychiatric
condition, and in relation to acts of self-mutilation.
In particular, in September 2004 the applicant
was admitted to tuberculosis hospital no. 7 in relation to the progression of
his infection with the hepatitis C virus. He had a number of blood tests, such
as a full blood count (including leukocytes, erythrocytes, and lymphocytes), a
urine test, a chest fluorography, an X-ray and an abdominal ultrasound scan,
and was examined by a chest physician and a neurologist. It appears that, although
scheduled, a consultation by an infectious disease specialist was not provided.
It is indicated in one of the documents submitted by the Government that the
applicant’s weight dropped to 60.5 kg in September 2004. However, it can be
seen from the record of a check-up done on 1 October 2004 that his weight
was then 70 kg. This record mentions HIV stage 2 or 3 (not clearly legible). The
next check-up was scheduled for April 2005.
The Government submitted a
handwritten medical document (which appears to relate to 2004) bearing the
stamp of prison no. 9 and indicating HIV stage 3A.
It appears that in April 2005 the applicant was
examined by an infectious disease specialist who prescribed laboratory testing
for bilirubin and some laboratory tests in relation to liver function. The
record of a check-up of the applicant of 25 July 2005 indicates HIV stage
2Б. The next check-up was scheduled for 25 January 2006.
In July 2005 the applicant
complained that he was not being provided with adequate medical treatment in
relation to his diseases, in particular as regards his HIV infection. The Kizel
prosecutor’s office in charge of the supervision of prisons examined the
applicant’s complaint and stated that the applicant had been provided with
medical care free of charge, and that he had been regularly admitted to a
medical facility and had consultations by infectious disease specialists. The
prosecutor’s office also mentioned that no funds had been allocated to prison
no. 12 for out-patient treatment of HIV-positive detainees in 2005 and thus the
relevant medication had not been available there.
In March 2006 the applicant
was again hospitalised and his discharge certificate refers to HIV stage 3. In
July 2006 he had a periodic check-up; the record indicates HIV stage 3 (corrected
from “4”).
In July 2006 the applicant
complained about the issue of medical care to the Federal Department for the
Execution of Sentences. This authority stated in reply that an infectious
disease specialist had concluded that antiretroviral therapy (ART) was not
necessary. Another similar complaint was examined in August 2006 by the Kizel
prosecutor’s office in charge of the supervision of prisons. Dismissing the
applicant’s complaint, this authority mentioned that prison hospital no. 9 had
facilities for carrying out an immunological assessment, should it be
prescribed for the applicant. So far there had been no indications for such an
assessment.
In September 2006 the Medical
Office of the Regional Department for the Execution of Sentences examined and
dismissed the applicant’s further complaint relating to his HIV treatment. They
stated that the applicant had received the necessary testing and medication, as
well as consultations by specialist doctors, including an infectious disease
specialist. They indicated that a decision on immunological assessment had to
be taken by a medical professional. The applicant’s illnesses and their staging
had not, at the relevant time, required ART.
Between October 2006 and May 2007 the applicant
was kept in hospital no. 7 in the Perm region, on account, in particular, of
the aggravation of his pulmonary tuberculosis. According to the Government, in
October 2006 the applicant failed to comply with unspecified recommendations
made by the regional centre for the prevention of and fight against AIDS and
infectious diseases (“the AIDS centre”).
The applicant had a check up in
January 2007; the record indicates HIV stage 4Б. In March 2007 he
underwent an immunological assessment. It appears that he started a highly
active antiretroviral therapy (HAART) regimen in April 2007. In early 2008 the
regimen was adjusted.
The applicant sought early
conditional release. By a judgment of 4 September 2008 the Solikamsk Town
Court of the Perm Region granted his application and ordered his release,
considering that his continued detention was not necessary for the purposes of
his “correction”. The applicant was released soon thereafter. The court
ordered him to report to the supervising authority and not to change his place
of residence without prior notice to that authority.
According to the applicant, the administration
of the detention facility told him that he had fifteen days to leave Russia or he would be deported.
According to the Government, in October 2008 and
January 2009 the applicant attended the AIDS centre, where he confirmed that he
was taking medication.
B. Criminal proceedings against the applicant
On 15 April 2004, rejecting the applicant’s
plea of self-defence, the Leninskiy District Court of Perm convicted the
applicant of causing injuries to one person and causing fatal injuries to
another person. The court sentenced the applicant to six years and one month of
imprisonment. On 25 May 2004 the Perm Regional Court upheld the judgment.
The applicant made submissions through a videoconferencing facility from the
remand centre.
The applicant served his sentence of imprisonment
from June 2004 to September 2008, when he was released (see paragraphs 12 and 22 above).
II. RELEVANT DOMESTIC LAW
A. Decree no. 170 of 16 August 1994
By Decree no. 170 of 16
August 1994 the Federal Ministry of Health adopted Guidelines relating to
HIV/AIDS Diagnosis and Treatment (section 1) and Dispensary Supervision
(section 2). The Guidelines state as follows.
There is a clear link between the illness’s
progress and the reduction of CD4 lymphocytes, the latter process being the
main feature of HIV pathogenesis (point 1.1.). Staging of HIV should be determined
depending on clinical and other relevant considerations listed in the
Guidelines (points 1.3. and 1.5.). An HIV-positive person should be subjected
to an initial examination confirming the HIV diagnosis and determining the
stage of the illness and any concomitant illnesses. The initial examination should
include, inter alia, HIV serological testing (an enzyme-linked
immunosorbent assay test and a western blot test) and a CD4 cell count (point
2.1. of the Guidelines). Subsequent examinations should be carried out in
accordance with the gravity of the patient’s state of health, or on a periodic
basis. A subsequent examination at HIV stage 2 or 3 should be carried out in
twelve months for a CD4 cell count of below 500, and in twenty-four months for a
CD4 cell count of above 500 or if unknown.
Basic therapies include ART
and prophylaxis to prevent secondary diseases. Antiretroviral therapy should be
prescribed at stages 2A, 3A, 3Б and 3B (under the
Russian classification) during periods of clinical activity and with regard to
the clinical data (point 1.6.2.1. of the Guidelines). As to periods of
remission, sustaining ART should be provided, with regard to clinical and
immunological assessment. Depending on the CD4 level, the therapy should be
constant or administered in three-month periods with three-month interruptions.
If the CD4 level is not known, no sustaining therapy should be provided in
certain situations or at stage 3A.
B. Federal Law no. 38-FZ of 30 March 1995
Federal Law no 38-FZ on the Prevention of HIV Propagation
in Russia provided, in its pre-January 2005 version, that the State guaranteed the
availability of the relevant examinations for detecting HIV infection;
diagnosis and treatment; and provision of free medical care to HIV-positive
Russian citizens (section 4 of the Law).
III. REVELANT INTERNATIONAL
DOCUMENTS
A. Patient evaluation and ART
In 2004 the World Health Organisation (WHO) published its Guidelines “Scaling
up Antiretroviral Therapy in Resource-Limited Settings. Guidelines for a public
health approach.” They read as follows:
“WHO recommends that, in resource-limited settings, HIV-infected
adults and adolescents should start ARV therapy when the infection has been
confirmed and one of the following conditions is present.
*Clinically advanced HIV disease:
-WHO Stage IV HIV disease, irrespective of the CD4 cell count;
-WHO Stage III disease with consideration of using CD4 cell
counts <350/mm3 to assist decision-making.
*WHO Stage I or II HIV disease with CD4 cell counts <200/mm3...
... The treatment of patients with WHO Stage IV disease
(clinical AIDS) should not be dependent on a CD4 cell count determination.
However, where available, this test can be helpful in categorizing patients
with Stage III conditions with respect to their need for immediate therapy. For
example, pulmonary TB can occur at any CD4 count level and, if the CD4 cell
count level is well maintained (i.e. >350/mm3), it is reasonable
to defer therapy and continue to monitor the patient. For Stage III conditions
a threshold of 350/mm3 has been chosen as the level below which
immune deficiency is clearly present such that patients are eligible for
treatment when their clinical condition portends rapid clinical progression ...
For patients with Stage I or Stage II HIV disease the presence of a CD4 cell
count <200/mm3 is an indication for treatment.
In cases where CD4 cell counts cannot be assessed the presence
of a total lymphocyte count of 1200/mm3 or below can be used as a
substitute indication for treatment in the presence of symptomatic HIV disease.
While the total lymphocyte count correlates relatively poorly with the CD4 cell
count in asymptomatic persons, in combination with clinical staging it is a
useful marker of prognosis and survival. An assessment of viral load (e.g.
using plasma HIV-1 RNA levels) is not considered necessary before starting
therapy. Because of the cost and complexity of viral load testing, WHO does not
currently recommend its routine use in order to assist with decisions on when
to start therapy in severely resource-constrained settings. It is hoped,
however, that increasingly affordable methods of determining viral load will
become available so that this adjunct to treatment monitoring can be more
widely employed.
It should be noted that the current WHO Staging System for HIV
Infection and Disease for Adults and Adolescents was developed several years
ago and has consequent limitations. Adaptations at the level of national
programmes may therefore be appropriate. Nevertheless, it remains a useful tool
for assisting in defining parameters for initiating therapy in resource-limited
settings and thus has continued to be applied in this revision.”
Under these Guidelines, if CD4 testing was, at the time, not available,
it was recommended that ART be offered to patients with: (i) WHO Stage IV
disease, irrespective of the total lymphocyte count; (ii) WHO Stage III
disease, irrespective of the total lymphocyte count, the recommendation to
start ART in all patients with stage III disease without reference to total
lymphocyte counts reflecting, in the WHO’s opinion, the consensus of expert
opinion; and (iii) WHO Stage II disease with a total lymphocyte count ≤
1200/mm3. A total lymphocyte count of ≤ 1200/mm3
could be substituted for the CD4 count when the latter was unavailable and
HIV-related symptoms existed. It was not useful in the asymptomatic patient. Thus,
in the absence of CD4 cell testing, asymptomatic HIV-infected patients (WHO
Stage I) should not be treated because there was currently no other reliable
marker available in severely resource-constrained settings.
In 2004 the WHO also published “HIV/AIDS
Treatment and Care. WHO Protocols for countries of the Commonwealth of Independent
States”. The Protocols provide that the initial evaluation of an HIV positive
patient must, inter alia, include routine laboratory assessments
(haemoglobin, white blood cell count and differential, urinalysis, liver
function tests, creatinine) and a CD4 cell count. ART should be started at (i) stage
IV irrespective of CD4 cell count; (ii) stage III disease if symptoms present
(including, but not restricted to, chronic diarrhoea of unknown aetiology,
prolonged fever of unknown aetiology, pulmonary tuberculosis, recurrent
invasive bacterial infections, or recurrent/persistent mucosal candidiasis),
with consideration given to using CD4 cell counts < 350/mm3 to
assist decision making. A CD4 count is advisable to assist with determining the
need for immediate therapy. For example, pulmonary TB may occur at any CD4
level and other conditions may be mimicked by non-HIV aetiologies (for example,
chronic diarrhoea, prolonged fever); (iii) stage I or II disease with CD4 cell
counts = 200/mm3. The precise CD4 level above 200/mm3 at
which ART treatment should be started is not established. ART is recommended
for all patients with TB with a CD4 count < 200 cells/mm3 and
should be considered for patients with CD4 < 350 cells/mm3.
In 2006 the WHO issued revised guidelines:
“Antiretroviral therapy for HIV infection in adults and adolescents.
Recommendation for a public health approach.” (with previous updates from 2003).
They read as follows:
“In resource-limited settings the decision to initiate ART in
adults and adolescents relies on clinical and immunological assessment. In
order to facilitate the rapid scale-up of ART programmes with a view to
achieving universal access to this therapy, WHO emphasizes the importance of
using clinical parameters in deciding when to initiate it. However, it is
recognized that the value of clinical staging in deciding when to initiate and
monitor ART is improved by additional information on baseline and subsequent
(longitudinal) CD4 cell counts. While WHO continues to advocate wider availability
of affordable point-of-care CD4 cell count testing, the lack of a CD4 count
should not delay the initiation of ART if the patient in question is clinically
eligible. WHO encourages national programmes to increase access to CD4
measurement technologies ...
Clinical staging is intended for use where HIV infection has
been confirmed by HIV antibody testing. It should form part of the baseline
assessment (first visit) on entry into a care and treatment programme and is
used to guide decisions on when to start co-trimoxazole prophylaxis and when to
start and switch ART in situations where CD4 testing is not available ...
ART results in improvement in clinical status and brings about
effective reversal of the clinical stage in patients with symptomatic disease.
However, the value of clinical staging in monitoring the efficacy of ART,
defining ART failure and determining when to switch ART is less clear. Studies are
urgently needed to address the use of clinical criteria (clinical stage on
treatment) in deciding when to switch ART in the absence of CD4 cell counts or
viral load testing.
The optimum time to commence ART is before patients become
unwell or present with their first opportunistic infection. Immunological
monitoring (CD4 testing) is the ideal way to approach this situation. A
baseline CD4 cell count not only guides the decision on when to initiate ART
but is also essential if CD4 counts are to be used to monitor ART ...
The benchmark threshold marking a substantially increased risk
of clinical disease progression is a CD4 cell count of 200 cells/ mm3.
Although it is never too late to initiate ART, patients should preferably begin
the therapy before the CD4 cell count drops to or below 200 cells/mm3 [A-III]. The
optimum time to initiate ART with a CD4 cell count of 200−350 cells/ mm3
is unknown.
Patients with CD4 cell counts in this range require regular
clinical and immunological evaluation.
The treatment of patients with WHO clinical stage 4 disease
should not depend on a CD4 cell count determination: all such patients should
initiate ART [A-III]. For WHO clinical stage 3 conditions, a threshold of 350
cells/ mm3 has been identified as a level below which functional immune
deficiency is present and ART should be considered. This level also conforms to
what is indicated in other consensus guideline documents. 4 CD4 cell counts can
be helpful in categorizing patients with stage 3 conditions in respect of their
need for immediate therapy. For example, pulmonary tuberculosis or severe
bacterial infections can occur at any CD4 count level and it is reasonable to
delay ART and continue to monitor patients with CD4 cell counts above 350 cells/ mm3.
However, the initiation of ART is recommended for all HIV-infected individuals with
pulmonary TB and CD4 counts below 350 cells/ mm3 ... and also for
patients with severe bacterial infections who have CD4 counts below this value.”
According to the WHO Clinical Protocols on HIV/AIDS
Treatment and Care, adopted in 2007, the core component of treating
HIV-positive persons is the provision of ART, including HAART, combining three
or more drugs. The initial evaluation of a patient should include confirmation
of HIV infection status with the potential time of infection established, if
possible; a detailed personal, family and medical history; a physical
examination; laboratory and other examinations; specialist examinations, as
appropriate; and clinical and immunological staging. Clinical staging (stage 3
or 4) and CD4 counts are the best primary markers and viral load the secondary
marker for deciding whether to start ART.
In 2010 the WHO issued a revised and updated
version of the Guidelines “Antiretroviral therapy for HIV infection in adults
and adolescents. Recommendation for a public health approach.”The revised text indicates that all
adolescents and adults with HIV infection and CD4 counts of or less than
350 cells/mm3 should start ART, regardless of the presence or
absence of clinical symptoms. Those with severe or advanced clinical disease
(WHO clinical stage 3 or 4) should start ART irrespective of their CD4 cell
count. All patients should have access to CD4 cell-count testing to
optimise pre-ART care and ART management. Viral-load testing is recommended to
confirm suspected treatment failure. Irrespective of CD4 cell counts, patients
co-infected with HIV and tuberculosis should be started on ART as soon as
possible after starting TB treatment.
B. Medical care in detention
The United Nations Guidelines on HIV/AIDS and
Human Rights, under the heading “Freedom from Cruel, Inhuman or Degrading
Treatment or Punishment” state that denial to prisoners of access to
HIV-related health care can constitute cruel, inhuman or degrading treatment,
whereas prisoners suffering from AIDS should be considered for early release
and given proper treatment outside prison.
The relevant extracts from the 3rd
General Report [CPT/Inf (93) 12] of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as
follows:
38. A prison health care service should be able to provide
medical treatment and nursing care, as well as appropriate
diets, physiotherapy, rehabilitation or any other necessary special facility,
in conditions comparable to those enjoyed by patients in the outside community.
Provision in terms of medical, nursing and technical staff, as
well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of
the distribution of medicines. Further, the preparation of medicines should
always be entrusted to qualified staff (pharmacist/nurse, etc.).
39. A medical file should be compiled for
each patient, containing diagnostic information as well as an ongoing record of
the patient’s evolution and of any special examinations he has undergone. In
the event of a transfer, the file should be forwarded to the doctors in the
receiving establishment.
Further, daily registers should be kept by health care teams,
in which particular incidents relating to the patients should be mentioned.
Such registers are useful in that they provide an overall view of the health
care situation in the prison, at the same time as highlighting specific
problems which may arise.
40. The smooth operation of a health care service
presupposes that doctors and nursing staff are able to meet regularly and to
form a working team under the authority of a senior doctor in charge of the
service.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the deficiencies
in his medical care in detention between 2003 and 2006 amounted to a violation
of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government argued that the applicant had not
exhausted domestic remedies because he had not complained to the administration
of the detention facilities about his medical care. Nor had he lodged a civil
claim for compensation in respect of non-pecuniary damage or damage to his
health caused to him in this regard. Moreover, he could also have brought a
complaint under Chapter 25 of the Code of Civil Procedure, which, as clarified
by the Plenary Supreme Court in 2009, enables the courts to deal with
health-related issues.
The Court observes that the applicant’s
complaint was first raised in substance before the Court in May 2006 and
concerned the continuous situation of absent or inadequate medical care during
his detention since 2003. The Court has previously examined and dismissed
similar arguments on the part of the Government in relation to a similar
situation (see Koryak v. Russia, no. 24677/10, §§ 74-95, 13 November 2012, and Dirdizov
v. Russia, no. 41461/10, §§ 75-91, 27 November 2012). Nothing in the Government’s submissions
inclines the Court to reach a different conclusion in the present case.
The Court notes that this complaint 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.
A. Merits
1. The parties’ submissions
(a) The applicant
The applicant alleged that between 2003 and 2006
he had not been provided with adequate medication in respect of his illnesses,
in particular HIV and hepatitis C. He argued, with reference to the domestic
and international documents, that an immunological assessment was an indispensable
element of the medical care of an HIV-positive patient and such an assessment
should have been carried out on a regular basis. Between 2003 and 2006 no
informed decision as to the necessity for a highly active antiretroviral
therapy (HAART) could be taken without a complete immunological assessment, and
no such assessment had been carried out until 2007, when the applicant’s state
of health had already deteriorated significantly. The antiretroviral treatment
had been prescribed in 2007 only when his condition had reached stage 4, although
the relevant clinical indications had already been noted earlier. In any event,
provision of sustaining ART should have been available to the applicant while
the disease was in remission. During his detention he had complied with all
medical recommendations. In 2009, after his release, however, he had indeed not
complied with the medical recommendations, fearing arrest and deportation from Russia.
(b) The Government
The Government stated that following HIV testing
the applicant had been placed under supervision in the medical unit of the
remand centre in 2003. He had received consultations by an ophthalmologist, a
dermatologist and a psychiatrist. Under the applicable domestic rules (see
paragraph 29 above) antiretroviral treatment could be prescribed where it was clinically
indicated and while the disease remained clinically active, until the
disappearance of clinical symptoms. The clinical data in 2003-06 had not
indicated that antiretroviral treatment was necessary; the applicant had at
that time been receiving treatment for concomitant diseases, including
tuberculosis. Making their own assessment of the available documentation, the
Government affirmed that the presence of tuberculosis was not an element of
clinical data which necessitated ART. The Government submitted that the
applicant’s other illnesses (such as tuberculosis or hepatitis C) were not
HIV-related since they had not resulted from his HIV infection and, as such,
could not be taken as markers for determining the necessity for ART.
The Government submitted that the applicant had
been under the constant supervision of the medical staff and had had regular
check-ups in the detention facilities and hospitals. Diagnosis and treatment of
his illnesses had been provided at the minimum required standard. It did not
follow from the prosecutor’s reference to the lack of funding in the prison in
2005 (see paragraph 16 above) that the applicant had not been provided with
adequate medical care in medical facilities to which he had been admitted on
numerous occasions during the relevant period. At times the applicant had
refused medication, treatment or medical testing. He had been taken before a
medical committee, which had informed him of the necessity of treatment and the
adverse consequences of refusing it. Following his release, the applicant had again
refused to comply with the medical recommendations and had refused medication.
2. The Court’s assessment
(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 did 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 systematic, and involves a comprehensive
therapeutic strategy aimed at adequately treating the detainee’s health
problems or preventing their aggravation (see Dirdizov v. Russia, no.
41461/10, § 95, 27 November 2012, and 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 a fair degree of 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).
Concerning its own scrutiny, the Court
reiterates that, in view of the subsidiary nature of its role, it must be
cautious in taking on the role of a first-instance tribunal of fact where this
is not rendered unavoidable by the circumstances of a case. The Court has held
in various contexts that where domestic proceedings have taken place, it is not
the Court’s task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to assess the
evidence before them (see, among others, Giuliani and Gaggio v. Italy
[GC], no. 23458/02, §§ 179 and 180, 24 March 2011). Although the Court is
not bound by the findings of domestic courts, in normal circumstances it
requires cogent elements to lead it to depart from the findings of fact reached
by those courts (ibid.).
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 in the present case
. Both before and after his arrest the
applicant was diagnosed with, and treated for, a number of illnesses. After his
arrest in 2003 he tested positive for HIV infection. It can be seen from
the available documents that in 2003 the applicant’s HIV was at stage 2. It
appears that in 2004 it progressed to stage 3 and remained at that stage until
2006. At least one official report submitted by the applicant indicated that
the prison at that time had no funding to supply prisoners with HIV-related
medication (see paragraph 16 above). An
immunological assessment was carried out in March 2007. The applicant started
receiving antiretroviral treatment in April 2007.
. The Court observes that the main
thrust of the applicant’s complaint in the present case relates to the alleged
failings of the prison authorities in relation to his HIV infection. In
particular, the applicant argued that the authorities failed, between 2003 and
2006, to carry out a proper immunological assessment and to put in place an (HA)ART
regimen.
Having regard to the nature of the applicant’s
medical conditions, his submissions and the documents available (see paragraphs
27-37 above), 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).
. The Government submitted in response
that the authorities had rightly decided on the basis of the relevant test
results that between 2003 and 2006 the applicant required no specific medical
treatment, including antiretroviral treatment.
Thus, the main dispute between the parties is whether
(HA)ART for HIV should have been administered to the applicant in 2003 to 2006.
The Court has not been provided with any authoritative, for instance expert
and/or judicial, assessment in this connection. As a rule, 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, cited above, § 59). For this reason, it is not the Court’s task to rule on
matters lying exclusively within the field of expertise of medical specialists and
to establish whether the applicant in fact required such treatment during the
relevant period.
Rather, in order to determine whether Article 3
of the Convention has been complied with, the Court will focus on determining
whether the domestic authorities provided the applicant with sufficient medical
supervision capable of effectively assessing his condition and setting up an
adequate course of treatment for his diseases (see Kozhokar v. Russia,
no. 33099/08, § 108, 16
December 2010). It considers that, given the nature and seriousness of his
ailments, the applicant’s condition required, inter alia, regular and
specialised medical supervision for the monitoring of the progression rate of
his HIV infection and timely diagnosis and treatment of possible opportunistic or
concomitant infections (ibid.).
The Court notes that the complex medical issues
arising in the present case were not subject to any prior and thorough scrutiny
at the national level. Although the applicant’s complaints relating to medical
care were examined and dismissed by various public authorities, it appears that
they did not have recourse to the requisite expertise or any specialist opinion
(see paragraphs 16, 18 and 19 above). Neither the
authorities nor the respondent Government in the present case specified a sufficient
factual basis for their conclusions as to the adequacy of the medical care and
supervision provided to the applicant during the relevant period.
Thus, it falls to the Court to determine, in the
light of the parties’ submissions and the available materials, including those
obtained by it proprio motu (see A.B. v. Russia, no. 1439/06, § 131, 14 October 2010), whether the
factual and legal elements of the case disclose a violation of Article 3 of the
Convention. Indeed, this is not the first time that the Court has had to deal
with allegations of inadequate HIV-related medical care in respect of detainees
in Russia (see Aleksanyan,
cited above, §§ 145-158; A.B.
v. Russia, no. 1439/06,
§§ 132-135, 14 October 2010; Kozhokar v. Russia, no. 33099/08, §§ 108-116,
16 December 2010; Shchebetov v. Russia, no. 21731/02, §§ 73-77, 10 April 2012; and Koryak
v. Russia, no. 24677/10,
§§ 102-108, 13 November 2012).
The Court notes that the WHO stipulated, both at
the relevant time and, even more clearly, in subsequent reports (see paragraph 31
above), that in the case of an HIV infection an initial patient evaluation
should include, inter alia, laboratory and other examinations, as well
as clinical and immunological staging. Laboratory HIV-related testing includes HIV
serological testing and a CD4 cell count to determine the severity of the immunodeficiency.
Similar requirements also clearly arise from the applicable domestic
regulations (see paragraphs 27-29 above).
. The Court observes that in September
2003 the applicant underwent HIV serological testing, which included two
enzyme-linked immunosorbent assays and a confirmatory test (see paragraph 9
above). Having tested HIV positive, the applicant was given an initial physical
examination. Similar examinations were carried out, albeit at varying intervals,
later (see paragraphs 10-21 above).
The Court finds it regrettable that the reference
to the applicant’s HIV staging is not legible in the initial check-up record
and that, despite a request from the Court, the parties submitted no specific
information giving the exact data of the initial HIV testing. In particular,
neither the available documents nor the Government’s submissions indicate how
the staging of the applicant’s HIV was determined. Nor does it appear that the
applicant had a consultation by an infectious diseases specialist in 2003 or 2004.
Significantly, despite the applicant’s specific arguments, the respondent
Government have omitted to clarify whether the domestic authorities took any
measures to determine the severity of the applicant’s immunodeficiency by way
of a CD4 cell count or another equivalent measure which was sufficient and current
at the time. It has not been argued that a CD4 cell count, as envisaged by the
2004 WHO guidelines, was not available at the time (see paragraph 31 above). To
the contrary, the domestic regulations in force at the relevant time did
provide for this type of testing (see paragraphs 27 and 28 above). The
collection of this data had a certain importance in view of the presence of tuberculosis,
in particular in so far as management of the compounding effect of the
co-infection was concerned. Furthermore, the applicant had also tested positive
for the hepatitis C virus, which was among the relevant factors to be taken
into consideration when planning the applicant’s HIV-related treatment.
The
Government’s submissions are limited to stating that following the initial HIV
testing the applicant was placed under supervision in the medical unit of the
remand centre or a hospital for detainees. Their assertions before the
Court relating to the timeliness of the decision to initiate ART only in 2007 are
not substantiated by reference to any medical assessment of the applicant’s
situation and thus cannot be accepted by the Court as based on verified medical
evidence.
The Court has been unable
to assess on the basis of the available information whether the applicant’s HIV
status in 2003 to 2006 required (HA)ART or whether some other form of medical
care was appropriate and afforded to him. The fact remains, however, that for several
years there was no proper immunological assessment to determine the appropriate
time to initiate antiretroviral therapy. It was not until 2007, that is, nearly
four years after the authorities had learned of the applicant’s illness, that
he was enabled to commence the therapy.
These considerations are sufficient for the
Court to conclude that in the circumstances of the present case the authorities
failed to comply with their responsibility to ensure the provision of adequate
medical care to the applicant (see A.B. v. Russia, §§ 132-135, and Koryak, § 102, both cited above).
In view of the
gravity of the applicant’s medical condition and the respondent Government’s omission
to substantiate their position regarding the absence of any need for medical
care in relation to the applicant’s HIV between 2003 and 2006, the case discloses
a failure on the part of the respondent State leading to a situation in which
the applicant can be said to have been subject to distress or hardship of an
intensity exceeding the unavoidable level of suffering inherent in detention.
The Court thus considers that the authorities’ failure amounted to inhuman and
degrading treatment within the meaning of Article 3 of the Convention.
There has therefore
been a violation of this provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained about the conditions
of his detention, ill-treatment by prison officials, unlawful detention and
unfair criminal proceedings.
The Court has examined these complaints as
submitted by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court 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 is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
III. 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 compensation in respect of
non-pecuniary damage, leaving the amount to the Court’s discretion.
The Government considered that a finding of a
violation should suffice.
The Court observes that it is undeniable that
the applicant suffered physical pain and mental anguish in relation to his
serious medical conditions. It also accepts that he must have suffered
distress, frustration and anxiety related to his inadequate health care, as
established by the Court. Having regard to the nature of the violation and
making assessment on an equitable basis, the Court awards the applicant 7,500
euros (EUR) in respect of non-pecuniary damage, plus any tax that may be
chargeable on this amount.
B. Costs and expenses
Since the applicant made no claim, the Court
does not find it necessary to make any award under this head.
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 concerning medical
care in detention 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) 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, plus any tax that may be
chargeable;
(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.
Done in English, and notified in writing on 23 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
