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TARARIYEVA v. RUSSIA - 4353/03 [2006] ECHR 1096 (14 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1096.html
Cite as:
(2009) 48 EHRR 26,
48 EHRR 26,
[2006] ECHR 1096,
[2007] Prison LR 270,
[2008] Inquest LR 209
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FIFTH
SECTION
CASE OF TARARIYEVA v. RUSSIA
(Application
no. 4353/03)
JUDGMENT
STRASBOURG
14
December 2006
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 Tarariyeva v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr A.
Kovler,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4353/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Nadezhda Dmitriyevna
Tarariyeva (“the applicant”), on 4 December 2002.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
The
applicant alleged, in particular, a violation of Mr Tarariyev's right
to life as a result of defective medical assistance and the absence
of effective remedies in that connection, as well as a violation of
the guarantee against inhuman and degrading treatment in respect of
Mr Tarariyev.
By
a decision of 11 October 2005, the Court declared the application
partly admissible.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1946 and lives in the Krasnodar Region. She is
the mother of Mr Nikolay Ivanovich Tarariyev, a Russian national who
was born in 1976 and died on 4 September 2002.
A. Criminal proceedings against Mr Tarariyev
1. First conviction
On
5 October 1996 Mr Tarariyev was involved in a fist fight in which he
hit his former girlfriend's boyfriend. The injured man died three
days later.
On
8 October 1996 criminal proceedings were instituted against
Mr Tarariyev on suspicion of having caused grievous bodily
injury that resulted in the victim's death, an offence under Article
108 § 2 of the RSFSR Criminal Code.
On
6 April 2000 Mr Tarariyev was convicted as charged and sentenced to
six years' imprisonment in a correctional colony. On the same day he
was taken into custody.
On
17 May 2000 the Krasnodar Regional Court upheld the conviction.
2. Medical conditions in the Khadyzhensk colony
Mr
Tarariyev was sent to serve his sentence at correctional facility
no. UO-68/9 in the town of Khadyzhensk of the Krasnodar Region
(the “Khadyzhensk colony”).
On 10 January 2001 Mr Tarariyev, who was in a serious
condition, was taken into hospital for in-patient treatment. He was
diagnosed with Morgagni-Adams-Stokes illness and an acute ulcer
condition. Doctors prescribed strict bed rest and medicines. On
16 January 2001 Mr Tarariyev's state of health improved
slightly.
On
22 January 2001 he was escorted to Treatment and Prevention
Institution no. 5 (14) (lechebno-profilakticheskoye uchrezhdenie
no. 5 (14), “prison hospital”) where he received
treatment from 1 to 12 February 2001.
On
1 or 2 March 2001 Mr Tarariyev was brought back from the prison
hospital to the Khadyzhensk colony with acute gastroduodenitis.
On 6 March 2001 he was examined and diagnosed with
chronic gastroduodenitis. Certain medicines and vitamins were
prescribed.
3. Quashing of the conviction and a new trial
On
2 August 2001 the Presidium of the Krasnodar Regional Court quashed
the judgments of 6 April and 17 May 2000 under the
supervisory review procedure and remitted the case for a new trial.
On
22 September 2001 Mr Tarariyev was transferred to the Krasnodar
remand centre (the “Krasnodar SIZO”).
On
20 February 2002 Mr Tarariyev fainted in the court room. The court
ordered a medical examination of Mr Tarariyev by doctors of the
Krasnodar SIZO and by doctors of the Afinskiy district hospital. It
put questions to them about the illnesses Mr Tarariyev had, whether
he needed in-patient treatment and whether he could remain in
detention.
On 22 February 2002 Afinskiy district hospital sent
the following report to the court, signed by the deputy head doctor,
the head of department and the doctor in charge:
“Afinskiy district hospital no. 3 replies that Mr
Tarariyev is undergoing treatment in the department of digestive
illnesses in connection with a heart illness (myocarditis) and an
acute condition of duodenal ulcer.
For treatment and differential diagnostics the patient
is to remain in the department for no less than two weeks. [He]
cannot be held in an investigations ward or detention facility.”
On 1 March 2002 Mr Tarariyev was discharged from the
hospital to the Krasnodar SIZO. On 6 March 2002 he sought medical
assistance and received out-patient treatment. He was diagnosed with
stomach and duodenal ulcer, cardioneurosis and chronic
gastroduodenitis.
On
19 April 2002 the Severskiy District Court pronounced a new
conviction against Mr Tarariyev and sentenced him to six years'
imprisonment in a correctional colony. On 10 July 2002 the Krasnodar
Regional Court upheld the conviction on appeal.
B. Mr Tarariyev's death
On
31 July 2002 Mr Tarariyev was transferred to the Khadyzhensk colony.
According to the applicant, upon his arrival all medicines were taken
away from him and no medical assistance was provided.
1. Worsening of Mr Tarariyev's condition and the first
surgery
At
8.30 a.m. on 20 August 2002 Mr Tarariyev applied to the medical
department of the colony, complaining about acute pain. He was
diagnosed as having a perforated duodenal ulcer and peritonitis. In
view of his serious condition, a decision was made to transfer him to
a civilian hospital.
At
1 p.m. on the same day surgery was performed on Mr Tarariyev at
Apsheronsk Central District Hospital ( “Apsheronsk hospital”
or “the civilian hospital”).
The applicant maintained that she had visited her son
on 21 and 22 August and seen him shackled with handcuffs by his
left hand to the hospital bed. In support of her statements she
produced a written affidavit by a friend of hers, Ms T., who had also
come to visit on 21 August. With the permission of the head of
the resuscitation department, the applicant had stayed overnight on a
spare bed. Her son had given her an authority form to collect his
personal belongings.
On
21 and 22 August the applicant complained to the Apsheronsk
prosecutor, the Krasnodar Regional Prosecutor's Office, the President
of the Krasnodar Regional Court and the deputy head of the
Khadyzhensk colony about the handcuffing of her son and asked for him
not to be sent to the prison hospital in view of his condition.
2. Mr Tarariyev's discharge and transport to the prison
hospital
On
22 August 2002 Mr Tarariyev was diagnosed with a breakdown of sutures
in the duodenum, duodenal fistula and peritonitis. He was discharged
from Apsheronsk Hospital and transported to the prison hospital,
120 km from Apsheronsk.
According
to the Government, Mr Tarariyev was transported by a “special
car” accompanied by an experienced medical nurse who carried a
set of necessary medical equipment on her. They produced a written
statement by the nurse. She indicated that during the journey she had
talked to Mr Tarariyev about his health and measured his blood
pressure which had been stable. The patient had had no complaints.
The travel time had been two hours.
According
to the applicant, she had objected to her son's discharge and
transfer but the head of the resuscitation department, Mr K., had
told her that the transfer was mandatory because Mr Tarariyev was a
convict. She had assisted the medical staff to load the applicant,
wrapped in a blanket, onto a wheel stretcher and then into the prison
van (“avtozak”) onto a layer of padded cotton
mattresses.
3. Second surgery and Mr Tarariyev's death
On
24 August 2002 further surgery on Mr Tarariyev's abdominal organs was
performed in the prison hospital.
On
4 September 2002 the applicant came to see her son and learnt that he
had died at 7.35 a.m. on that day.
According
to the death certificate of 5 September 2002, the autopsy established
that the death had been caused by acute anaemia (blood loss) provoked
by massive gastrointestinal haemorrhaging. A perforated duodenal
ulcer was noted as a concomitant illness.
C. Investigation into Mr Tarariyev's death
On
7 September 2002 an assistant to the Teuchezh inter-district
prosecutor informed the applicant of the decision not to initiate
criminal proceedings in connection with Mr Tarariyev's death.
On
8 February 2003 the Apsheronsk district prosecutor told the applicant
that medical specialists of the Khadyzhensk colony had used their
best efforts to save Mr Tarariyev's life as they had sent him to
Apsheronsk Hospital, which possessed the necessary surgical
equipment.
On
19 February 2003 the Apsheronsk district prosecutor issued a decision
to initiate criminal investigation no. 366214 into the actions of
medical specialists of Apsheronsk Hospital. The Apsheronsk District
Police Department was requested to carry out an inquiry under Article
118 § 2 of the Criminal Code (negligent infliction of a grievous
bodily injury resulting from incompetent performance of professional
duties).
Between 3 and 26 March 2003 the investigators
interviewed the doctors Du., Da. and K. of Apsheronsk Hospital, the
psychologist of the Khadyzhensk colony and the surgeon Mr D. of the
prison hospital. Mr D. testified as follows:
“...on the day of arrival Mr Tarariyev was in a
serious state, unfit for transport... Conservative therapy was
indicated... In the night of 23 August 2002 a haemorrhage began and
we started discussing surgery... On 4 September 2002 he had another
fit of intestinal haemorrhaging from the ulcer defect... [The
hospital] has no facilities for blood transfusion because it has no
contract with the blood-transfusion service. For that reason Mr
Tarariyev received blood substitutes which could not stabilise
haemodynamics adequately...”
On
27 March 2003 a police investigator ordered a medical inquiry into
the circumstances of Mr Tarariyev's treatment and death.
By
a decision of 1 April 2003, the applicant was granted victim status
in criminal case no. 366214.
On 29 April 2003 a panel of three medical specialists
returned the following unanimous findings:
“...6. Given the duodenal ulcer complicated by
perforation (defect of the wall of a hollow organ), the transfer of
Mr Tarariyev from the [Khadyzhensk] colony to Apsheronsk Hospital for
surgery was required for vital reasons...
4.5. Examination and treatment of Mr Tarariyev in
Apsheronsk Hospital at the moment of his arrival was timely as his
condition required emergency surgery. Owing to a short and defective
description of the surgery at Apsheronsk Hospital (the state of the
stomach and organs of the abdominal cavity is not reflected, there is
no indication of the method of suturing the ulcer defect or
disinfecting and draining the abdominal cavity), it is impossible to
determine whether the surgical technique was correct. Two days later
a breakdown of sutures was observed at the place where the ulcer
defect had been sutured, which gives rise to doubts about the quality
of... the surgery performed...
7.8. On 22 August 2002 the patient Tarariyev
was unreasonably transferred to [the prison hospital] with the
diagnosis 'Sutures breakdown in the duodenum. Duodenal fistula in
formation, peritonitis'. The patient was in an extremely serious
condition, not fit for transport and required further emergency
surgery – further laparotomy, revision and sanation of organs
of the abdominal cavity and removal of the duodenal fistula, which
was not done by either the doctors of Apsheronsk Hospital or the
doctors of the [prison hospital]. The transportation to the [prison
hospital] aggravated the patient's condition and delayed emergency
medical assistance. For unspecified reasons the surgery in the
[prison hospital] was performed too late, two days after [the
patient's] arrival...
9. The experts' panel considers that there is
no causal link between the actions of the doctors of the
[Khadyzhensk] colony and Mr Tarariyev's death... Defects in medical
assistance administered to Mr Tarariyev in Apsheronsk Hospital and
the [prison hospital] cumulatively resulted in the patient's death
and there is a causal link between these events.”
On
21 May 2003 charges were brought under Article 109 § 2 of the
Criminal Code (negligent manslaughter resulting from incompetent
performance of professional duties) against the doctors of Apsheronsk
Hospital and the prison hospital.
On
3 June 2003 the case against the doctors of the prison hospital was
severed and referred for investigation to the Krasnodar Regional
Prosecutor.
On 4 June 2003 the applicant asked the Apsheronsk
district prosecutor to put additional questions to medical experts.
In particular, she disagreed with the experts' findings in the part
exculpating the medical staff of the Khadyzhensk colony. She
submitted that they were to blame for the acute condition of her
son's ulcer and its ultimate perforation because all medicines had
been taken away from him and he had had to pick plantain and
dandelions for self-treatment. The applicant did not receive any
response to her request.
On
6 June 2003 an investigator of the Apsheronsk district prosecutor's
office commissioned a supplementary medical expert examination,
asking the experts to determine what medical instructions the doctors
of Apsheronsk Hospital had failed to comply with.
On 19 June 2003 the experts reported as follows:
“The experts' panel considers that the nurse O.,
the internist Kh., the anaesthetists-resuscitators K. and Shch. and
the head of the resuscitation and anaesthology department K. did not
violate any provisions of their Code of Practice... when providing
medical assistance to Mr Tarariyev.
The surgeon Du. did not arrange for a consultation by an
internist before the surgery; the surgery was performed with
technical defects that resulted in the breakdown of sutures; he did
not call for the head of the surgery department in good time (on 22
August 2002, i.e. two days later); together with the head of
department, he decided to discharge the patient, who was unfit for
transportation, to another institution; he filled in the medical
documents approximately... whereby he violated the rules governing
provision of medical assistance in the field of general surgery and
[certain provisions] of the Code of Practice of surgeons.
The head of the surgery department Da. failed to check
the surgeon Du.'s actions; he did not examine the patient Tarariyev
daily; it was his duty to control the discharge of a seriously ill
patient unfit for transport (the surgical tactics were chosen
incorrectly, further emergency surgery was required, a consultation
with an expert in resuscitation and an internist was not organised
before the discharge), which was in violation of [certain provisions]
of the Code of Practice binding on heads of surgery departments.
Having regard to the above, the panel considers that the
unjustified discharge of the seriously ill patient Tarariyev, who was
unfit for transportation, from Apsheronsk Hospital led to the belated
provision of medical assistance, the development of complications and
death, for which the head of the surgery department is to be held
liable pursuant to the Code of Practice.”
By a decision of 21 June 2003 the senior assistant to
the Adygheya Republic prosecutor refused to initiate criminal
proceedings against doctors of the prison hospital on the ground that
the alleged offence had not been committed (otsutstvie sobytiya
prestupleniya). On the basis of statements by the doctor D. and
the deputy head of the therapy department, it was established that
the medical records provided by Apsheronsk Hospital had contained no
information on the surgery performed and post-operative
complications, such as the breakdown of sutures. Mr Tarariyev's
condition had been further aggravated by the conditions of his
transfer in a prison van. Further surgery had not been performed
immediately because an examination of the patient had been required.
According to the decision, the very length of the post-operative
period showed that the further surgery had been performed correctly
and that the ulcerative defect which had ultimately caused the death
had not been a consequence of it. On 25 August 2003 the
applicant received a copy of the decision.
On
10 July 2003 the investigator closed the criminal case against all
the other doctors of the Apsheronsk hospital and preferred criminal
charges against the head of the surgery department Mr Da. On 22
August 2003 the case was set down for trial, the applicant intervened
as a civil party.
On
30 September 2003 the Apsheronsk District Court of the Kransodar
Region acquitted Mr Da. on the ground that no evidence produced by
the prosecution established Mr Da.'s guilt. In particular, the report
of the medical experts of 29 April 2003 had only established a causal
link between the actions of doctors of both hospitals and Mr
Tarariyev's death, but had not directly implicated Mr Da. The second
report of 19 June 2003 could not be relied upon because the
Code of Practice was regarded as inadmissible evidence (for
unspecified reasons). On the basis of Mr K.'s testimony, the
court found that Mr Da. could not have reasonably foreseen the
patient's death because Mr Tarariyev's condition at the time of
his discharge “was improving” and “permitted his
transport to [the prison hospital]”. The judgment was silent on
the destiny of the applicant's civil claim.
Both
the applicant and the prosecution appealed. The applicant claimed, in
particular, that Mr Da. had sent her son to certain death because he
had authorised his discharge in a serious condition and transport for
more than 100 km in a car unfit for transportation of patients. The
court did not determine her civil claim against Mr Da. and refused to
adjourn the proceedings for ten days because her lawyer was engaged
in the regional court. The prosecution challenged the court's
decisions on admissibility and assessment of evidence.
On
10 December 2003 the Krasnodar Regional Court examined the appeals
and upheld the acquittal, endorsing the arguments of the
first-instance court.
On
5 November 2003 the senior assistant to the Adygheya Republic
prosecutor reported to the applicant that an additional inquiry into
the actions of the staff of the prison hospital had been carried out
further to her complaint to the Prosecutor General's Office. It was
found that Mr Tarariyev had been kept in intensive care and
received intensive infusion and antibacterial treatment in
preparation for the surgery. Therefore, no negligence could be
established.
On
27 January and 2 March 2004 the Prosecutor General's Office told the
applicant that all inquiries had been carried out in a comprehensive
and objective manner and there were no grounds to quash the decisions
made.
D. Relevant medical documents
Medical in-patient record no. 53, opened for Mr
Tarariyev on 1 February 2001 at the prison hospital:
“Preliminary diagnosis: duodenal ulcer,
recrudescence of chronic gastritis...
12 February 2001: discharged to the colony after
improvement. Recommendations have been given...”
Duplicate of an unnumbered outpatient record from the
Khadyzhensk colony:
“Arrived from the [Kransodar SIZO] without a
medical record. 31 July 2002: healthy, no complaints. Stomach ulcer
in the patient's medical history. Tuberculosis specialist: healthy.
Internist: healthy.
20 August 2002, 8.30 a.m. ... Diagnosis: perforated
duodenal ulcer. General peritonitis. Hypovolemic shock, 2nd degree.
Needs urgent surgery. Medicines: ...”
Medical in-patient record no. 7377/1362, opened for Mr
Tarariyev on 20 August 2002 at 11.30 a.m. at the surgery unit of
Apsheronsk public hospital:
“...20 August 2002, 1.00-2.35 p.m. Surgery:
laparotomy. Suture ligation of ulcer. Drainage of the abdominal
cavity...
22 August 2002, 8 a.m. – 2 p.m. Examination by the
head of the department. The patient is in a serious state due to the
early post-surgery period and breakdown of sutures in the ulcer
area...
23 [sic] August 2002: discharged for transfer to
a special hospital.”
Medical record no. 419, opened for Mr Tarariyev on 22
August 2002 at 5.30 p.m. in the surgery unit of the prison hospital:
“...24 August 2002, 3 a.m., doctor on duty. Urgent
call to the resuscitation room... The patient is in a very grave
state... haemorrhagic shock. Resuscitation measures taken. Treatment
within the hospital capacity: there is insufficient quantity of
menadione or aminocaproic acid...
24 August 2002, 7.35 a.m.-12.35 p.m. Surgery no. 225:
further laparotomy...
29 August 2002. The patient's state is stable, with a
tendency to improve...
4 September 2002, 5.50 a.m. Urgent call to the room.
Intense chest pain... At 7.35 a.m. death is confirmed.”
E. The questioning of the witness Ms T.
On
5 December 2005 the applicant complained to the Court that on 1 and
2 December 2005 the regional prosecutor's office had formally
questioned Ms T. about the events described in her affidavit (see
paragraph 25 above). In the applicant's view, such conduct of the
domestic authorities had clearly been intimidating for her witness.
On
19 December 2005 the Government submitted their observations on the
merits. They claimed, in particular, that –
“...the applicant's allegation that she visited Mr
Tarariyev in the resuscitation unit of the Apsheronsk central
hospital... and supposedly saw that he was handcuffed to the bed,
does not meet the reality and misleads the Court. According to the
Russian Federation General Prosecutor's Office... a repeatedly
conducted check has established that neither the applicant nor other
persons, except for medical staff and guards, had been admitted to Mr
Tarariyev... Thus, referring to the information of the Federal
Service of Execution of Sentences and the General Prosecutor's
Office, the Russian Federation authorities insist that during Mr
Tarariyev's stay at the Apsheronsk central hospital for treatment he
was not handcuffed.”
On
19 December 2005 the Court asked the Government whether Ms T.
had been interviewed and, if so, what the purpose and legal basis of
that interview had been. The Government were also requested to
produce copies of the interview records.
On
13 January 2006 the Government submitted their reply. They
acknowledged that on 30 November and 1 December 2005 Ms T. had been
summoned to the Severskiy district prosecutor's office for the
purpose of verifying the applicant's complaint to the Court, carried
out further to a request of the Government's Representative before
the European Court, dated 12 November 2005. The Government claimed
that Ms T. had not been “questioned” within the meaning
of the domestic law but merely asked to “give explanations”
in accordance with section 22 of the Public Prosecutors Act. No
pressure had been exerted on Ms T. and the constitutional guarantee
against self-incrimination had been explained to her. The Government
claimed that there had been no hindrance of the applicant's right of
individual petition under Article 34 of the Convention.
The Government produced copies of two printed
statements signed by the deputy prosecutor of the Severskiy district
and by Ms T. The statement of 30 November 2005 reads as follows:
“I have known Mrs Tarariyeva since 1993 because I
then dated her son... I know that Mrs Tarariyeva applied to the
European Court and I know the subject matter of her application...
Mrs Tarariyeva did not ask me to confirm any facts which did not
happen in reality.
On 21 August 2002 I went to Apsheronsk Hospital to see
Mr Tarariyev at the request of his mother. He was in a separate room
in the resuscitation department... There was a uniformed police
officer with a submachine gun in the same room, and two police
officers stood guard outside the room. We were let into the room in
the presence of the head of department. Mr Tarariyev was in a grave
condition... He could speak, but with great difficulty. His left hand
was attached with handcuffs to the metal rail of the bed... I
remained in the room for five to fifteen minutes. Several drips were
connected to Mr Tarariyev, to his right arm... I went only once to
Apsheronsk Hospital and have not seen Mr Tarariyev since.”
The
statement of 1 December 2005 reads as follows:
“In reply to additional questions, I confirm that
I visited Mr Tarariyev at Apsheronsk Hospital on 21 August 2002...
Mrs Tarariyeva and I had come to Apsheronsk in the night of 20 August
2002 but they had not let us in because Mr Tarariyev had just
undergone surgery... I cannot say whether Mr Tarariyev was guarded by
police. They might have been convoy officers; I do not know their
insignia. All three of them wore green camouflage uniform. The
officer with a submachine gun, who was in Mr Tarariyev's room,
sometimes sat on the bed or folding bed and sometimes got up and
walked about. I do not remember the appearance of the officers who
stood guard outside the room but I can describe the officer who was
in the room...”
II. RELEVANT DOMESTIC LAW
A. Civil Code
The general provisions on liability for damage read as
follows:
Article 1064. General grounds giving rise to
liability for damages
“1. Damage inflicted on the person or
property of an individual... shall be reimbursed in full by the
person who inflicted the damage...
2. The person who inflicted the damage shall
be liable for it unless he proves that the damage was inflicted
through no fault of his...”
B. Code of Criminal Procedure
If criminal proceedings are discontinued at the stage
of the investigation, an aggrieved person who joined the proceedings
as a civil party may lodge a separate civil claim unless the
proceedings were discontinued on the ground that (a) the alleged
offence had not been committed (otsutstvie sobytiya prestupleniya)
or (b) the suspect had not been involved in its commission (Article
213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)).
If the defendant is acquitted by the trial court on
the ground that (a) the alleged offence was not committed or (b) the
defendant was not involved in its commission, the trial court
dismisses the civil claim. If the defendant is acquitted on the
ground that one or more constituent elements of a criminal offence
are missing (Article 24 § 1 (2)), the trial court disallows the
civil claim but it may be lodged again in civil proceedings (Article
306 § 2).
C. Public Prosecutors Act
Section
22 provides that a public prosecutor may summon officials or private
persons and ask them for explanations about violations of laws.
D. Penitentiary Act
The Penitentiary Act (the Federal Law on Institutions
and Authorities Executing Criminal Sentences in the Form of
Deprivation of Liberty, no. 5473-I of 21 July 1993) provides that
handcuffs may be applied to detainees with a view to putting an end
to mass disorder or during the convoy of detainees whose conduct
gives reason to believe that they might escape or harm themselves or
others (Section 30 (2) and (4)).
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
The relevant extracts from the 3rd General Report
[CPT/Inf (93) 12] by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (“the
CPT”) read as follows:
“a. Access to a doctor
... 35. A prison's health care service
should at least be able to provide regular out-patient consultations
and emergency treatment (of course, in addition there may often be a
hospital-type unit with beds). ... Further, prison doctors should be
able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as
appropriate, by health care staff; in many cases it is not sufficient
for the provision of follow-up care to depend upon the initiative
being taken by the prisoner.
36. The direct support of a fully-equipped
hospital service should be available, in either a civil or prison
hospital. ...
37. Whenever prisoners need to be
hospitalised or examined by a specialist in a hospital, they should
be transported with the promptness and in the manner required by
their state of health.”
b. Equivalence of care
38. A prison health care service should be able to
provide medical treatment and nursing care... 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...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE
CONVENTION
The
applicant complained that her son, Mr Tarariyev, had died in custody
as a result of inadequate and defective medical assistance and that
those responsible had not been identified and punished. The Court
will first examine this complaint from the standpoint of Article 2 of
the Convention, the first sentence of which provides:
“Everyone's right to life shall be protected by
law.”
A. The Government's preliminary objection as to the
non-exhaustion of the domestic remedies
In
their submissions following the Court's decision as to admissibility
of the application, the Government pointed out that the applicant had
not challenged the prosecutor's decision of 21 June 2003 refusing
institution of criminal proceedings against the medical staff of the
prison hospital, before a court of general jurisdiction.
The
Court reiterates that, according to Rule 55 of the Rules of
Court, any plea of inadmissibility must, in so far as its character
and the circumstances permit, be raised by the respondent Contracting
Party in its written or oral observations on the admissibility of the
application (see, for example, Prokopovich v. Russia, no.
58255/00, § 29, 18 November 2004, with further references).
The Government's submissions referred to the events that had occurred
before the application was lodged with the Court and there had been
no relevant legal developments thereafter. There are no exceptional
circumstances which would have absolved the Government from the
obligation to raise their preliminary objection before the Court's
decision as to the admissibility of the application. Consequently,
the Government are estopped from raising a preliminary objection of
non-exhaustion of domestic remedies at the present stage of the
proceedings.
B. Submissions by the parties on the merits
The
Government claimed that there had been no violation of Mr Tarariyev's
right to life. His death had not been a consequence of inadequate
conditions of detention or medical assistance, but the outcome of an
unpredictable development of the illness he had acquired prior to his
placement in custody. The investigators and domestic courts had
thoroughly examined the circumstances of Mr Tarariyev's death,
assessed a substantial body of evidence, commissioned a medical
examination, interviewed witnesses and found no fault on the part of
the medical staff or other persons. The Government further submitted
that the applicant's civil claim for non-pecuniary damages had been
dismissed because Mr Da. had been acquitted and because the
Russian law of tort did not provide for liability without fault in
such a situation.
The
applicant maintained that the appalling conditions of her son's
detention at the State penitentiary institutions, exacerbated by the
lack of appropriate treatment, had led to a recrudescence of his
ulcer on 14 August 2002, its perforation and other complications on
20 August and his death on 4 September. The direct cause of
Mr Tarariyev's death had been blood loss caused by internal
haemorrhaging. Both medical record no. 419 and Mr D.'s testimony
indicated that the prison hospital did not possess a sufficient
quantity of haemostatics and no investigation into that matter had
been carried out. The applicant considered that the investigation had
been neither comprehensive nor adequate. After her civil action in
the criminal proceedings had been refused she had no prospects of
obtaining redress in civil proceedings.
C. The Court's assessment
1. General principles applicable to the protection of
the right to life
The
Court reiterates that the first sentence of Article 2, which ranks as
one of the most fundamental provisions in the Convention and also
enshrines one of the basic values of the democratic societies making
up the Council of Europe, requires the State not only to refrain from
the “intentional” taking of life, but also to take
appropriate steps to safeguard the lives of those within its
jurisdiction (see, for example, Keenan v. the United Kingdom,
no. 27229/95, § 89, ECHR 2001 III). In the context of
prisoners, the Court has already emphasised in previous cases that
persons in custody are in a vulnerable position and that the
authorities are under a duty to protect them. It is incumbent on the
State to account for any injuries suffered in custody, which
obligation is particularly stringent where that individual dies (see,
for example, Keenan, cited above, § 91, and Salman
v. Turkey [GC], no. 21986/93, § 99, ECHR
2000-VII).
Those principles apply in the public-health sphere
too. The positive obligations require States to make regulations
compelling hospitals, whether private or public, to adopt appropriate
measures for the protection of patients' lives. They also require an
effective independent judicial system to be set up so that the cause
of death of patients in the care of the medical profession, whether
in the public or the private sector, can be determined and those
responsible made accountable (see Vo v. France [GC],
no. 53924/00, § 89, ECHR 2004 VIII; Calvelli
and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR
2002 I; and Powell v. the United Kingdom (dec.), no.
45305/99, ECHR 2000-V). Furthermore, where a hospital is a public
institution, the acts and omissions of its medical staff are capable
of engaging the responsibility of the respondent State under the
Convention (see Glass v. the United Kingdom, no. 61827/00,
§ 71, ECHR 2004 II).
Although the right to have third parties prosecuted or
sentenced for a criminal offence cannot be asserted independently
(see Perez v. France [GC], no. 47287/99, § 70, ECHR
2004-I), the Court has stated on a number of occasions that an
effective judicial system, as required by Article 2, may, and under
certain circumstances must, include recourse to the criminal law.
However, if the infringement of the right to life or to physical
integrity is not caused intentionally, the positive obligation
imposed by Article 2 to set up an effective judicial system does not
necessarily require the provision of a criminal-law remedy in every
case. In the specific sphere of medical negligence, the obligation
may for instance also be satisfied if the legal system affords
victims a remedy in the civil courts, either alone or in conjunction
with a remedy in the criminal courts, enabling any liability of the
doctors concerned to be established and any appropriate civil
redress, such as an order for damages and for the publication of the
decision, to be obtained. Disciplinary measures may also be envisaged
(see Vo, cited above, § 90; Calvelli and Ciglio,
cited above, § 51; Lazzarini and Ghiacci v. Italy
(dec.), no. 53749/00, 7 November 2002; and Mastromatteo
v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).
2. Application of the general principles in the present
case
(a) Alleged failure of the Russian
authorities to protect Mr Tarariyev's right to life
i. State responsibility
The
Court notes that since 6 April 2000 and until his death on
4 September 2002 Mr Tarariyev was in custody and, accordingly,
under the control of the Russian authorities. It is not disputed that
Mr Tarariyev suffered from various chronic illnesses, such as ulcer,
gastritis and gastroduodenitis. The Government did not deny that the
authorities had been well aware of those ailments (see, in
particular, paragraphs 12 -15, 19 and 20 above), which had required
constant medical supervision and appropriate treatment. In these
circumstances, the Court considers that the authorities should have
kept an ongoing record of Mr Tarariyev's state of health and the
treatment he underwent while in detention (see the CPT's General
Report on the standards of health care in prisons, cited in paragraph
67 above).
ii. Adequacy of medical care at the
Khadyzhensk colony
The
applicant pointed out that, according to a duplicate of the medical
record submitted for the medical expert report in 2003, Mr Tarariyev
had been considered healthy and there was no mention of any medical
examination or check-up. As no medicines had been available, he had
had to pick plantain and dandelions for self-treatment.
Relying
on the identically worded affidavits given in 2005 by the acting
director of the Khadyzhensk colony and the head of its medical unit,
the Government claimed that after his return from the prison hospital
in March 2001, Mr Tarariyev had been enrolled for regular medical
check-ups. The details of the treatment could not be provided. The
information about check-ups had been entered into the original
medical record that had remained in the Krasnodar remand centre and
was no longer available, and also in the check-up registers that had
been destroyed in 2005. For that reason, entering the same
information in the duplicate medical record had been unnecessary.
The
Court notes that when Mr Tarariyev arrived at the Khadyzhensk colony
on 31 July 2002, he was not new to the establishment. He had
previously stayed there in 2000/2001 and from there he had been taken
to a prison hospital with an acute ulcer condition. As the medical
record from the prison hospital indicated, on his discharge
“recommendations [about his treatment] ha[d] been given”
(see paragraph 52 above). It is not clear what these recommendations
were, where they were recorded, and whether they were implemented
following Mr Tarariyev's return to the Khadyzhensk colony by the
colony officials responsible for the health and well-being of
detainees.
In
so far as the events in July and August 2002 are concerned, the Court
does not need to determine whether or not Mr Tarariyev was enrolled
for regular check-ups at the Khadyzhensk colony. The crucial element
for its assessment of that period is the absence of any indication of
a medical examination by a gastroenterologist after Mr Tarariyev's
return to the colony and until the grave deterioration of his
condition twenty days later. As noted above, the colony officials
were fully aware of Mr Tarariyev's medical history of stomach ulcer
and this was mentioned in the duplicate medical record (see paragraph
53 above). Lacking current and reliable information on his state of
health – as his original medical record had either been left
behind at the Krasnodar remand centre or mislaid at the colony –,
the colony authorities did not arrange for his examination by a
specialist, confining their observations to the mention that he was
not infected with tuberculosis, considered himself healthy and made
no complaints. The Court, however, considers that in case of a
prisoner returning from hospital with a known history of medical
ailments, the authorities are under an obligation to ensure
appropriate follow-up care independent of the initiative being taken
by the prisoner (see the CPT's General Report on the standards of
health care in prisons, cited in paragraph 67 above). Although the
applicant's allegation that her son had to fall back on plants for
self-treatment cannot be verified, his medical record contains no
evidence that he received any follow-up care until his ulcer became
perforated on 20 August 2002. Accordingly, the Court finds that
at the Khadyzhensk colony Mr Tarariyev was not adequately examined
and did not receive medical care appropriate to his state of health.
iii. Adequacy of medical care at
Apsheronsk Hospital
On
20 August 2002 Mr Tarariyev underwent surgical intervention for a
perforated ulcer at Apsheronsk public hospital. The Court notes that
a panel of three medical specialists unanimously formed the view that
the quality of the surgery was at least open to doubt because of a
subsequent breakdown of sutures. Furthermore, a summary and defective
description of surgery in the medical records made impossible more
precise factual findings (see point 4.5 of the report of 29 April
2003). A supplementary experts' report found fault with the
practising surgeon, Mr Du., who had not arranged for a consultation
by an internist before the surgery and had performed the operation
with technical defects, and his supervisor, Mr Da., who had not
checked the patient's condition (see the report of 19 June 2003,
cited in paragraph 44 above). As the Government did not put forward
any argument casting doubt on the findings of the domestic medical
experts, the Court finds that the quality of surgical care
administered to Mr Tarariyev at Apsheronsk public hospital was
inadequate.
The
Court pays particular attention to the subsequent decisions taken by
the doctors of Apsheronsk public hospital. It appears from
Mr Tarariyev's in-patient record that in the morning of 22
August 2002 the head of the department Mr Da. examined him and
established that he was “in a serious state due to... breakdown
of sutures in the ulcer area” (see paragraph 54 above). The
panel of medical experts later determined that the state of the
patient had called for further immediate surgery (see point 7.8 of
the report of 29 April 2003, and the report of 19 June 2003).
However, no such surgery was arranged.
Instead,
the surgeon and the head of the department took the decision to
discharge Mr Tarariyev for transfer to the prison hospital. As
the medical experts found, Mr Tarariyev had been “unfit for
transport” and the decision to discharge him had been taken
without appropriate consultation by specialists and had been
“unreasonable” and “unjustified” (see the
above-cited experts' reports). The Government did not produce any
element contradicting those findings. The Court cannot, moreover,
overlook the fact that the doctors of the public hospital provided
their colleagues in the prison hospital with an incomplete medical
record of Mr Tarariyev. The information crucial for the proper
assessment of the patient's state was missing: the record contained
no mention of the surgery performed or the post-operative
complications, such as the breakdown of sutures (see paragraph 45
above).
The
domestic medical experts found that the decision to discharge had
been the main cause of aggravation of Mr Tarariyev's condition
because it had led to “belated provision of medical assistance
and the development of complications and death” (see the
above-cited report of 19 June 2003). As these findings were not
refuted by the Government, the Court considers that the medical care
administered to Mr Tarariyev at Apsheronsk public hospital was
inadequate.
The
fact that the criminal case against most of the doctors involved was
closed at the stage of pre-trial investigation, whereas Mr Da. was
acquitted by the domestic courts bound by the presumption of
innocence, does not absolve the respondent State from its
responsibility under the Convention for the acts and omissions in the
treatment of Mr Tarariyev. In all cases before the Court, what is in
issue is the international responsibility of the State (see Lukanov
v. Bulgaria, judgment of 20 March 1997, Reports of Judgments
and Decisions 1997 II, § 40; and Ribitsch v.
Austria, judgment of 4 December 1995, Series A no. 336, § 34).
iv. Adequacy of medical care at the prison
hospital (Institution no. 5)
Upon
his discharge, Mr Tarariyev was transported to the prison hospital
where he underwent further surgery on 24 August 2002. The medical
experts established that the surgery had been performed “too
late” (see point 7.8 of the above-cited report of 29 April
2003). It appears, however, that the absence of a reliable and
complete medical record from Apsheronsk public hospital complicated
and delayed the assessment of the patient's condition. It is unclear
why the prison hospital staff did not contact their colleagues from
the public hospital in that situation of urgency. The experts' panel
found that belated further surgery was one of the causes of Mr
Tarariyev's death (see point 9 of the above-cited report of 29 April
2003).
A
further element decisive for the assessment of the adequacy of
medical care at the prison hospital is whether it possessed the
necessary facilities to perform surgical interventions successfully
and deal with post-operative complications. In the present case it
appears that such facilities were conspicuously lacking. The surgeon
testified to the investigators that the prison hospital had “no
facilities for blood transfusion because it [had] no contract with
the blood-transfusion service” (see paragraph 36 above). An
entry in Mr Tarariyev's medical record from the prison hospital
indicates that the available quantity of haemostatics – that
is, blood-clotting agents – was insufficient (see paragraph 55
above). In the light of these facts the Court finds that the prison
hospital was not sufficiently equipped for dispensing adequate
medical care and that there was a causal link between these
deficiencies and Mr Tarariyev's death.
v. Summary of the Court's findings and
conclusion
In
sum, the Court has made the following findings in respect of the
applicant's contention that the Russian authorities failed in their
duty to protect Mr Tarariyev's right to life.
For
more than two years preceding his death Mr Tarariyev had been in
detention and the custodial authorities had been fully aware of his
health problems. There was no consistency in his medical records,
most of which were either mislaid or incomplete. At the Khadyzhensk
colony he was not properly examined and did not receive any medical
treatment. Although he was promptly transferred to a public hospital,
the surgery performed was defective. The doctors of the Apsheronsk
hospital authorised his discharge to the prison hospital in full
knowledge of the post-operative complications requiring immediate
further surgery. They also withheld crucial details of Mr Tarariyev's
surgery and developing complications. The prison hospital staff
treated him as an ordinary post-operative patient rather than an
emergency case with the consequence that surgery was performed too
late. Furthermore, the prison hospital was not adequately equipped
for dealing with massive blood loss.
The
existence of a causal link between the defective medical assistance
administered to Mr Tarariyev and his death has been confirmed by the
domestic medical experts and not disputed by the respondent
Government.
Accordingly,
the Court finds that there has therefore been a violation of Article
2 of the Convention on account of the Russian authorities' failure to
protect Mr Tarariyev's right to life.
(b) Adequacy of the investigation
The
Court also has to examine whether the respondent Government
discharged their obligation under Article 2 to put at the applicant's
disposal an effective judicial system, enabling liability for the
loss of life to be established and any appropriate redress to be
obtained (see the general principles cited in paragraph 75 above).
i. The criminal investigation
The
Court observes, firstly, that the competent prosecutors were
particularly slow in instituting a criminal investigation into the
circumstances that had led to Mr Tarariyev's death. The district
prosecutor opened a criminal case only on 19 February 2003, that is
five months after Mr Tarariyev's death. It also appears that the
scope of the case was originally limited to the acts of Apsheronsk
Hospital doctors and that it was only later extended to the medical
staff of the prison hospital. It follows that the beginning of the
investigation was belated.
Secondly,
the Court is not satisfied that the investigation was comprehensive.
Certain crucial circumstances were left outside the scope of the
official inquiries. As regards the actions of the Khadyzhensk
colony's officers, the prosecutors found that they had arranged for
Mr Tarariyev's transfer to a civilian hospital in a diligent manner,
but the adequacy of medical assistance in the preceding period was
never examined, despite the applicant's express request to that
effect (see paragraph 42 above). The prosecutor's decision of 21 June
2003 – concerning the staff of the prison hospital –
mentioned that Mr Tarariyev's state of health had deteriorated as a
consequence of the conditions of his transfer in a prison van (see
paragraph 45 above), but no attempts appear to have been made to
identify those responsible for such conditions of transfer. The issue
of responsibility for having discharged a serious patient without
appropriate medical documentation was not examined and that flagrant
omission did not form part of the charges brought against the head of
the surgery department Mr Da. Finally, the prosecutors did not
consider why the prison hospital had had no capacity for blood
transfusion and whether there had been a causal link between the
absence of haemostatic medicines and Mr Tarariyev's death,
notwithstanding the information contained in the death certificate
and the surgeon's testimony to that effect.
Thirdly,
the Court finds that the applicant's right to participate effectively
in the investigation was not secured. She had been formally granted
victim status in the criminal case against the doctors of the
civilian hospital but not in the severed case against the staff of
the prison hospital. The respondent Government did not deny that on 4
June 2003 the applicant had asked the prosecutor in writing to put
additional questions to the medical experts concerning the alleged
defects of medical assistance at the Khadyzhensk colony. Her request
remained unanswered, however. Furthermore, the decision of 21 June
2003 refusing the institution of criminal proceedings against the
prison hospital staff was not served on the applicant until two
months later, whereas the domestic law provides for immediate
service.
Fourthly,
the Court considers that the prosecution failed to prepare a solid
evidentiary basis for the trial. The case against the head of the
surgery department Mr Da. collapsed in court because the Code of
Practice regulating his professional duties had been excluded as
inadmissible evidence with the consequence that the experts' report
of 19 June 2003 grounded on that Code was rejected by the trial
court. The judgment itself is silent as to why that piece of evidence
was inadmissible and the Government did not clarify this matter. In
any event, in the final reckoning, Mr Da. could no longer be held
responsible for his failure to comply with the Code of Practice,
whereas the prosecution's case was precisely that of “manslaughter
resulting from incompetent performance of professional duties”.
Finally,
the Court observes that the case against the prison hospital staff
never went to trial, despite the medical experts' unanimous finding
that there had been a causal link between their failings and Mr
Tarariyev's death (see point 9 of the report of 29 April 2003, cited
above).
ii. Civil claim for compensation
As
to whether the applicant was able to obtain compensation in civil
proceedings, the Court notes that in Russian criminal law the
possibility of lodging a civil claim for damages against the putative
tortfeasor depends on the grounds on which the criminal proceedings
were discontinued. A decision to discontinue proceedings on the
ground that the alleged offence was not committed (otsutstvie
sobytiya prestupleniya) legally bars access to a civil court on
the basis of a claim for damages arising out of the same event (see
paragraph 63 above). If, however, the defendant is acquitted because
one or more elements of a criminal offence were missing, a civil
claim can still be re-introduced in separate civil proceedings (see
paragraph 64 above).
The
Court observes firstly that, by operation of the above-cited legal
provisions, the prosecutor's decision not to institute criminal
proceedings against the medical staff of the prison hospital on the
ground that no offence had been committed (see paragraph 45 above)
debarred the applicant from suing the prison hospital's staff for
damages in a civil court.
The
Court further notes that the head of the surgery department of
Apsheronsk Hospital, Mr Da., was acquitted on the ground that his
acts had not been criminal because guilt had not been made out. The
applicant's civil claim was disallowed but the domestic law permitted
her to lodge it again in separate civil proceedings. She has not
re-introduced it, evidently on the assumption that it would fail.
The
Court recalls that it has already examined a complaint by an
applicant that the prosecutors' decision not to bring criminal
proceedings against the perpetrators had had the effect of denying
him access to a court in respect of his civil claim for damages
arising out of the same incident. Having regard to case-law authority
to the effect that a civil court was not bound by the decision of the
prosecuting authorities terminating a criminal investigation and to
the fact that the applicant did not attempt to bring civil
proceedings, the Court found no violation of the applicant's rights
under Article 6 § 1 of the Convention (see Assenov and Others
v. Bulgaria, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998 VIII, §§ 107-113).
In
the Court's view, the present case is different and the crucial
distinction lies in the thrust of the applicant's complaint: in the
Assenov case the applicant complained about a breach of his
right of access to a court in that he would not be able to introduce
a civil action for damages; in the present case the applicant
contended that such an action could be introduced but had no chances
of success. The Government's position echoed the applicant's
contention. They submitted, in essence, that the criminal court had
reasonably dismissed the applicant's civil claim following Mr Da.'s
acquittal and that there had existed no other grounds of liability
permitting the applicant to recover compensation for non-pecuniary
damage. It follows that a civil action against Mr Da. would have
failed.
Finally,
it appears plausible that the applicant could have sued the civilian
and/or prison hospital as legal entities, relying on general grounds
of liability (see Article 1064 § 1 of the Civil Code, cited
above). However, as the Court has recently found, there is no
case-law authority for Russian civil courts being able, in the
absence of any results from the criminal investigation, to consider
the merits of a civil claim relating to alleged serious criminal
actions (see Isayeva v. Russia, no. 57950/00, § 155,
24 February 2005, and Isayeva and Others v. Russia, nos.
57947/00, 57948/00 and 57949/00, § 147, 24 February 2005).
In the present case the criminal investigation did not yield any
results. In the light of the above consideration the Court concludes
that the applicant's civil claim was bound to fail, irrespective of
the identity of the defendant.
iii. Summary of the Court's findings and
conclusion
The
Court has made the following findings in respect of the applicant's
complaint that the Russian authorities did not establish the cause of
Mr Tarariyev's death and made those responsible accountable.
The
criminal investigation was slow and its scope was restricted, leaving
out many crucial aspects of the events. The applicant's right to
effective participation in the investigation was not secured. The
prosecution had poorly prepared the evidentiary basis for the trial
which ended in the acquittal of the suspect. Following the failure of
the criminal proceedings the applicant did not have at her disposal
an accessible and effective civil-law remedy, either because a civil
claim was barred by operation of law or because it had no chances of
success in the light of the existing judicial practice.
In
these circumstances, the Court finds that there has been a violation
of Article 2 of the Convention on account of the Russian authorities'
failure to discharge their positive obligation to determine, in an
adequate and comprehensive manner, the cause of death of Mr Tarariyev
and to bring those responsible to account. The Court also considers
that no separate examination of the same issue from the standpoint of
Article 13 of the Convention is necessary.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the lack of medicines during her son's
detention at the Khadyzhensk colony, his handcuffing at Apsheronsk
Hospital and the conditions of his transport from Apsheronsk Hospital
to the prison hospital violated the Convention guarantee against
inhuman and degrading treatment, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Court has already examined the complaint about the medical conditions
of detention at the Khadyzhensk colony from the standpoint of Article
2 of the Convention. It considers that it is not necessary to examine
it separately under Article 3 of the Convention. It will therefore
proceed to an examination of the complaints concerning Mr Tarariyev's
handcuffing at the public hospital and the conditions of his
transport to the prison hospital.
A. Mr Tarariyev's handcuffing at Apsheronsk Hospital
The
applicant submitted that she and Ms Anna T. had visited Mr Tarariyev
at Apsheronsk Hospital and seen him shackled to the bed by his left
hand. She produced an affidavit by Ms T. with a detailed description
of their visit.
The
Government denied that the applicant had been allowed to enter Mr
Tarariyev's room at Apsheronsk Hospital and that handcuffs had been
applied to him. Referring to the findings of a supplementary inquest
carried out by the Prosecutor General's Office and to the information
obtained from the Federal Service for Execution of Punishments, they
pointed out that, in accordance with the Penitentiary Act, handcuffs
could only be applied to detainees whose conduct gave reason to
believe that they would escape or harm themselves or others (see
paragraph 66 above). Mr Tarariyev's state of health rendered
such conduct impossible and the use of handcuffs unnecessary.
Besides, additionally security was provided by an armed mobile guard
of several police officers.
The
Court notes that the applicant's contention of having seen her son
shackled to the hospital bed was disputed by the Government. The
applicant's version was, however, supported by an affidavit of a
witness, Ms T., submitted in the framework of the Convention
proceedings. Subsequently Ms T. repeated her statements at an
interview with a State official (see paragraph 60 above). The
Government, on the other hand, did not substantiate their claim with
any evidence, such as, for instance, statements by the hospital staff
or by the police officers who had stood guard in Mr Tarariyev's room.
They contended that the law did not require the use of handcuffs on a
person in Mr Tarariyev's situation but they furnished no proof that
the police officials had indeed acted in compliance with the legal
requirements in the instant case. The Court notes that the Prosecutor
General's Office continued to deny that the applicant and Ms T. had
been allowed to visit Mr Tarariyev at Apsheronsk Hospital even
after the district prosecutor had obtained Ms T.'s testimony to the
contrary. As the applicant's submissions were consistent and
supported by appropriate evidence, whereas the Government's
contentions lacked substantiation, the Court lends credence to the
applicant's version of events and finds it established that at least
on 21 August 2002 Mr Tarariyev was attached with handcuffs to
the bed at Apsheronsk Hospital.
The
Court reiterates that handcuffing does not normally give rise to an
issue under Article 3 of the Convention where the measure has been
imposed in connection with a lawful detention and does not entail use
of force, or public exposure, exceeding what is reasonably considered
necessary. In this regard, it is important to consider, for instance,
whether there is a danger that the person concerned might abscond or
cause injury or damage to himself or others (see Hénaf v.
France, no. 65436/01, § 48, ECHR 2003 XI; Mouisel
v. France, no. 67263/01, § 47, ECHR 2002 IX; and
Raninen v. Finland, judgment of 16 December 1997, Reports
of Judgments and Decisions 1997-VIII, § 56).
In
the instant case it was not in dispute between the parties that
Mr Tarariyev had not presented any danger of absconding or
causing self-harm or injury to others. He was attached to the bed on
the day after complex internal surgery. He was on a drip and could
not stand up unaided. It also appears from Ms T.'s detailed
deposition that a police officer armed with a submachine gun was
present in Mr Tarariyev's room and two other officers remained on
guard outside the room. In these circumstances, the Court considers
that the use of handcuffs was disproportionate to the needs of
security (cf. Hénaf and Mouisel, both cited
above).
Having
regard to Mr Tarariyev's state of health, to the absence of any cause
to fear that he represented a security risk and to the constant
supervision by armed police officers, the Court finds that the use of
restraints in these conditions amounted to inhuman treatment.
There
has been therefore a violation of Article 3 of the Convention on
account of Mr Tarariyev's handcuffing at the civilian hospital.
B. Conditions of Mr Tarariyev's transport to the prison
hospital
The
applicant complained that Mr Tarariyev had been transported from the
civilian hospital to the prison hospital by a standard-issue prison
van. She had helped the hospital staff to load him onto a layer of
padded cotton mattresses. She pointed out that the medical experts,
the prosecutor's office and doctors from the prison hospital had all
concurred that the transport in unfit conditions had aggravated Mr
Tarariyev's state of health.
The
Government claimed that Mr Tarariyev had been transported in a
“vehicle... designed for transport of convicts and... equipped
with a stretcher, two mattresses, sheets and a pillow”. Mr
Tarariyev had been accompanied by an experienced nurse who had
carried necessary medical equipment and continued the intravenous
injection of drugs. The medical staff of Apsheronsk Hospital had had
no objections to the proposed conditions of transport. The Government
referred to the written depositions by the nurse and by the head of
the medical department of the Khadyzhensk colony.
The
Court reiterates that the assessment of the level of severity which
ill-treatment must attain to fall within the scope of Article 3 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, Kudła v. Poland [GC], no.
30210/96, § 91, ECHR 2000-XI, and Peers v. Greece,
no. 28524/95, § 67, ECHR 2001-III). The Court has
previously found a violation of Article 3 of the Convention in a
Russian case where the applicant was transported in an overcrowded
prison van (see Khudoyorov v. Russia, no. 6847/02,
§§ 116-20, ECHR 2005 ...).
It
transpires from the parties' submissions, despite the difference in
terms they used in their descriptions, that the vehicle at issue was
designed for the transport of detainees rather than post-operative
patients (see the prosecutor's decision of 21 June 2003, cited in
paragraph 45 above). It was not an ambulance or any other type of
hospital vehicle. A wheel stretcher was used to bring Mr Tarariyev to
the vehicle, and inside the vehicle he was placed on the padded
mattresses. The distance between the civilian and prison hospitals
being more than one hundred kilometres, Mr Tarariyev was transported
for more than two hours in these conditions.
The
Court further notes that Mr Tarariyev's state of health was extremely
worrying. He had had internal surgery merely two days beforehand and
on the day of transport he was diagnosed with a breakdown of sutures,
a condition requiring further surgical intervention. As the medical
experts subsequently found, Mr Tarariyev had been “unfit for
transport” (see paragraph 45 above). In these circumstances,
the presence of a medical nurse could not compensate for the
inadequate conditions of transport.
Having
regard to Mr Tarariyev's serious condition, the duration of the
transport and the detrimental impact of that treatment on his state
of health, the Court considers that the transport of Mr Tarariyev in
a standard-issue prison van must have considerably contributed to his
suffering and therefore amounted to inhuman treatment.
There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of Mr Tarariyev's transport.
III. ALLEGATION OF HINDRANCE OF THE RIGHT OF INDIVIDUAL
PETITION GUARANTEED BY ARTICLE 34 OF THE CONVENTION
The
applicant complained that her witness, Ms T., had been summoned to
the prosecutor's office and interviewed in connection with her
application to the Court. The Court will consider whether these
actions by the Russian authorities amounted to a hindrance of the
applicant's right of individual petition under Article 34 of the
Convention:
“The Court may receive applications from any
person... 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
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
by Article 34 that applicants should be able to communicate freely
with the Convention organs without being subjected to any form of
pressure from the authorities to withdraw or modify their complaints.
The expression “any form of pressure” must be taken to
cover not only direct coercion and flagrant acts of intimidation of
applicants or their legal representatives but also other improper
indirect acts or contacts designed to dissuade or discourage them
from pursuing a Convention remedy. In a number of cases in which the
authorities had questioned applicants about their applications, the
Court has found them to be in breach of their obligations under
Article 34 (or former Article 25 § 1) of the
Convention (see Kurt v. Turkey, judgment of 25 May 1998,
Reports 1998 III, § 160; Tanrıkulu v.
Turkey [GC], no. 23763/94, § 130, ECHR 1999 IV; Akdivar
and Others v. Turkey, judgment of 16 September 1996, Reports
1996 IV, § 105; and Orhan v. Turkey,
no. 25656/94, § 407, 18 June 2002; see also Bilgin v.
Turkey, no. 23819/94, § 133, 16 November
2000; Dulaş v. Turkey, no. 25801/94, § 79, 30
January 2001; and Akdeniz and Others v. Turkey, no. 23954/94,
§ 118, 31 May 2001).
In
the instant case it was not the applicant herself but her witness, Ms
T., who had twice been asked to appear before a prosecutor and to
answer a number of questions relating to one of the applicant's
complaints to the Court. It is not necessary to examine whether the
questioning constituted a formal “interview” within the
meaning of that term in domestic law. The Government submitted
records of the questioning and their accuracy was not disputed.
Both
interviews concerned only one of the applicant's complaints to the
Court: the one relating to the use of handcuffs on Mr Tarariyev at
Apsheronsk Hospital. It appears that Ms T. was not questioned about
any other aspects of Mrs Tarariyeva's application, beyond a general
query as to whether she was aware of its contents and whether Mrs
Tarariyeva had asked her to state untrue facts. At the first
questioning Ms T. described the setting in Mr Tarariyev's room and
the people who had been present, including police officers. At the
second questioning she was asked to provide a detailed description of
these officers and to indicate whether she could identify them.
Assessing the contents of the questioning records as a whole, the
Court forms the view that the interviewers attempted to obtain
information which could be used for investigation of the treatment
applied to Mr Tarariyev and for identification of those responsible.
The Court further notes that Ms T. was not forced to give evidence to
the prosecutor. It appears that the language used by the prosecutor
did not contain any expressions, references or insinuations of a
threatening or dissuasive nature (see, by contrast, Petra v.
Romania, judgment of 23 September 1998, Reports 1998 VII,
§ 44).
In
the particular circumstances of the present case, the Court finds
that the questioning of Ms T. did not amount to “pressure”,
“intimidation” or “harassment” which might
have induced the applicant to withdraw or modify her application or
hindered her in any other way in the exercise of her right of
individual petition.
Consequently,
the respondent State has not failed to comply with its obligations
under Article 34 of the Convention.
IV. 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 asked the Court to determine the amount of compensation for
the suffering and distress caused by the death of her son.
The
Government considered the applicant's claim to be unsubstantiated.
The
Court accepts that the applicant suffered distress and frustration
because the State authorities did not take reasonable measures to
protect the life of her son and failed to secure the identification
and punishment of those responsible for his death. Making its
assessment on an equitable basis, the Court awards the applicant
25,000 euros (EUR) in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
The
applicant claimed 20,000 US dollars for costs and expenses relating
to her son's representation in the criminal proceedings and his
funeral.
The
Government pointed out that the amount was excessive and that the
applicant had only submitted postal receipts to a total of 3,050
Russian roubles (RUR).
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the documents in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 100 for the proceedings before it.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Holds unanimously that there has been a
violation of Article 2 of the Convention on account of the Russian
authorities' failure to protect the applicant's son's right to life;
Holds unanimously that there has been a
violation of Article 2 of the Convention on account of the Russian
authorities' failure to determine the cause of death of the
applicant's son and to bring those responsible to account;
Holds unanimously that no separate examination
of Article 13 of the Convention is necessary;
Holds unanimously that there has been a
violation of Article 3 of the Convention on account of the
applicant's son's handcuffing;
Holds unanimously that there has been a
violation of Article 3 of the Convention on account of the conditions
of transport of the applicant's son from the civilian to the prison
hospital;
Holds, by six votes to one, that the allegation
of hindrance of the right of individual petition has not been made
out;
Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
25,000 (twenty-five thousand euros) in respect of non-pecuniary
damage;
(ii) EUR
100 (one hundred euros) in respect of costs and expenses;
(iii) 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of Mr
J. Borrego Borrego is annexed to this judgment.
P.L.
C.W.
PARTLY DISSENTING OPINION OF JUDGE BORREGO BORREGO
This
opinion is not only the expression of my disagreement with the
majority regarding Article 34, but also a token of my recognition and
my gratitude to Ms T., this brave Russian woman and friend of the
applicant.
The
European Convention on Human Rights is an international treaty and as
such it “... is binding upon the parties to it and must be
performed by them in good faith” (Vienna Convention on the Law
of Treaties, 23 May 1969, Article 26). The European Convention states
that “the High Contracting Parties undertake not to hinder in
any way the effective exercise of this right” (Article 34). The
case law regarding this issue “... of the utmost
importance for the effective operation of the system...” is
reflected in paragraph 119 of the judgement.
“Not
to hinder in any way the effective exercise of this right”
means, firstly and obviously, that the applicants and their relatives
must not be subjected to any form of pressure, direct or indirect,
from the authorities to withdraw or modify their complaints.
Secondly,
and again obviously, effective exercise of the right of individual
petition entitles High Contracting Parties to argue freely about the
case, not to lie freely about the facts. It is very difficult to
ensure effective operation of the system if the Contracting Party
involved does not play its part fairly.
Much
to my regret, I cannot agree with the majority's conclusion that
there has been no violation of Article 34 in the present case.
Firstly,
Ms T., who witnessed the conditions in which Mr Tarariyev was treated
at the hospital, was subjected to pressure by the Russian
authorities. Following a request by the Government's Representative
before the European Court after the admissibility decision, Ms T. was
summoned to the Severskiy district prosecutor's office, where she was
asked “about violations of laws” (section 22 of the
Public Prosecutors Act). Ms T. was summoned as an accused or suspect
and therefore “the constitutional guarantee against
self-incrimination had been explained to her” (paragraph 59).
She was questioned on two consecutive days. Ms T. considered that she
had clearly been intimidated.
As to
the assessment of this questioning, the majority states that “the
Court forms the view that the interviewers attempted to obtain
information which could be used for investigation of the treatment
applied to Mr Tarariyev and for identification of those
responsible” (paragraph 121). Although I respect this point of
view, it seems unduly generous to me, more appropriate to a fairy
tale than to the present case, as the Government have consistently
and strongly denied any ill-treatment of Ms T.
In my
opinion, the respondent State has failed to comply with its
obligations under Article 34 of the Convention.
Secondly,
lying is contrary to good faith and hinders the effective operation
of the system. In their observations of 30 December 2004, the
Government replied to the question whether the applicant's son had
been handcuffed to the hospital bed by saying that “according
to the Russian Federation Ministry of Justice and the Russian
Federation General Prosecutor's Office, [these] allegations ... do
not comport with reality”. Consequently, the decision on
admissibility of 11 October 2005 states that “the Government
challenged as untrue the applicant's allegation that Mr Tarariyev
had been shackled to the hospital bed”.
Following
this decision Ms T., the witness, was summoned to the prosecutor's
office on two consecutive days (30 November and 1 December 2005). She
reiterated her affidavit and stated that “Mrs Tarariyeva did
not ask me to confirm any facts which did not happen in reality”.
On 19
December 2005, in spite of what Ms T. had stated in the prosecutor's
office, the Government said that “[this] applicant's allegation
... does not meet the reality and misleads the Court. According to
the Russian Federation General Prosecutor's Office, on the results of
a repeatedly conducted check, it has been established that neither
the applicant nor other persons ... had been admitted to Mr
Tarariyev...”.
It
seems obvious to me who made allegations that “do not meet the
reality and mislead the Court”. I consider this behaviour by a
High Contracting Party as evidence that it failed to comply with its
obligations under Article 34 of the Convention.
Finally,
I would like to thank Ms T., as well as Ms Tarariyeva. At difficult
moments in life, as the present case shows, exemplary behaviour comes
mostly from women. It is an honour for me, as a judge of this Court,
to work to ensure that people like Ms T. and Ms Tarariyeva have their
fundamental rights and freedoms guaranteed by the enforcement of the
Convention.
