(Application no. 4353/03)
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:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against Mr Tarariyev
1. First conviction
2. Medical conditions in the Khadyzhensk colony
3. Quashing of the conviction and a new trial
“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.”
B. Mr Tarariyev's death
1. Worsening of Mr Tarariyev's condition and the first surgery
2. Mr Tarariyev's discharge and transport to the prison hospital
3. Second surgery and Mr Tarariyev's death
C. Investigation into Mr Tarariyev's death
“...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...”
“...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.”
“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.”
D. Relevant medical documents
“Preliminary diagnosis: duodenal ulcer, recrudescence of chronic gastritis...
12 February 2001: discharged to the colony after improvement. Recommendations have been given...”
“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: ...”
“...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.”
“...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.
“...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.”
“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.”
“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
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
C. Public Prosecutors Act
D. Penitentiary Act
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
“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.”
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...”
I. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION
“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
B. Submissions by the parties on the merits
C. The Court's assessment
1. General principles applicable to the protection of the right to life
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
ii. Adequacy of medical care at the Khadyzhensk colony
iii. Adequacy of medical care at Apsheronsk Hospital
iv. Adequacy of medical care at the prison hospital (Institution no. 5)
v. Summary of the Court's findings and conclusion
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.
(b) Adequacy of the investigation
i. The criminal investigation
ii. Civil claim for compensation
iii. Summary of the Court's findings and conclusion
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.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Mr Tarariyev's handcuffing at Apsheronsk Hospital
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
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 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.”
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
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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;
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
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.
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.