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Cite as: [2008] ECHR 1783
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
3027/03
by Nikolay Anatolyevich SLADKOV
against Russia
The European Court of Human Rights (First Section), sitting on 4 December 2008 as a Chamber composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 1 December 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nikolay Anatolyevich Sladkov, is a Russian national who was born in 1971 and lives in Uryupinsk, Volgograd region. He was represented before the Court by Ms O. Preobrazhenskaya, a lawyer with the International Protection Centre in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s state of health
From 15 September 1997 to 22 February 2001 the applicant was serving a prison sentence after being convicted of murder in 1997, in penitentiary establishment IK-3 in Irkutsk.
According to the IK-3 medical records, his lungs’ X-ray frontal view photographs no. 139 of 23 February 1998 and no. 356 of February 2000 did not detect any changes in his lungs attributable to tuberculosis.
In February and April 2000 Mr G., who served his sentence in the same colony, underwent medical examinations including lung X-rays, which did not reveal any signs of tuberculosis either.
In September 2000 the applicant was allowed to move without convoy and settle outside the colony. On 22 September 2000 he started working at the colony bakery after undergoing a satisfactory medical examination.
On 17 November 2000 G. was placed in a job in the same bakery after having been found fit for that job by the colony doctor. On 28 November 2000 G. felt unwell and complained to the doctor. He was exempted from work on the same day and hospitalised with the diagnosis of pneumonia on 1 December. On 5 December 2000 he was diagnosed with tuberculosis.
(a) The applicant’s account of subsequent events
According to the applicant, soon afterwards he felt ill, with a severe cough and fever. The medical staff of IK-3 allegedly refused to examine him, to carry out appropriate medical treatment or to exempt him from work. He allegedly continued working at the bakery until his transfer to penitentiary establishment IK-13 on 22 February 2001.
(b) The Government’s account of subsequent events
According to the Government, immediately after diagnosing G. with tuberculosis all persons who had been in contact with him, including the applicant, were given a course of preventive treatment with anti-tuberculosis medicines in the form of injections and pills and were placed under medical supervision. None of them revealed signs of tuberculosis. The applicant did not complain about any health problems. The bakery and the place of G.’s residence were disinfected. On 26 January 2001 the applicant discontinued his work at the bakery. Before leaving IK-3 on 22 February 2001 he was examined by a doctor who found his state of health satisfactory.
Upon his arrival in IK-13 the applicant underwent a detailed medical examination. According to medical records, X-ray posterior view photographs no. 156 of 14 March 2001 revealed a firm area and isolated calcified foci in his left lung upper lobe, while X-ray frontal view photographs did not detect any changes in his lungs.
The applicant was diagnosed with “residual effects after spontaneously healed tuberculosis”. He was placed under medical supervision in category VII B, for practically healthy people not exempted from any kind of work but with an enhanced risk of developing tuberculosis. During subsequent examinations X-ray photographs no. 131 of 9 August 2001 and no. 147 of 7 February 2002 detected no negative dynamics.
The applicant’s medical supervision was discontinued on 15 March 2002. He did not ask for medical assistance afterwards.
According to X-ray photographs no. 241 of 1 November 2002, no negative dynamics in his lungs was detected.
On 17 February 2003 the applicant was released on parole.
From 2 November 2004 he was detained in SIZO-1 in Smolensk region.
According to a report by the chief tuberculosis specialist of the Federal Service for Execution of Punishments (“FSIN”) Medical Department of the Smolensk region, Ms S., of 24 May 2006, the applicant’s X-ray photographs of 9 November 2004, upon his arrival in SIZO-1, showed an isolated firm area in the upper lobe of his left lung. A medical commission found on 18 November 2004 that there was no indication of active tuberculosis and no reason for medical registration or supervision in respect of tuberculosis. The applicant’s subsequent regular medical examinations including X-ray photographs, the latest of 6 March and 17 May 2006, showed no dynamics. On 18 May 2006 a medical tuberculosis commission confirmed the diagnosis of residual effects after old tuberculosis. The report stated that taking into account the stable nature of the changes in the upper lobe of his left lung, at least from 2004, there was a very slight probability of a relapse into tuberculosis.
2. Domestic authorities’ investigation into the applicant’s complaints
(a) The prosecutor’s office
On 9 November 2001 the applicant complained to the Irkutsk town public prosecutor that the medical personnel of IK-3 had failed to provide him with proper medical treatment.
A prosecutor who exercised supervision over law compliance in penitentiary establishments carried out an investigation. On 10 December 2001 they received explanations from Mr D. and Mr S. who were serving their sentences in IK-3 and who had worked at the bakery together with the applicant and G. According to D. and S., after G. had been found ill with tuberculosis all convicts working at the bakery, including the applicant, had been examined at the medical unit of IK-3 and had undergone a full course of preventive treatment with daily injections and pills and supervision by a physician. The bakery premises had been disinfected. They also stated that they had never heard from the applicant about deterioration of his state of health.
In reply to the prosecutor’s inquiry of 5 December 2001 the Head of the FSIN Medical Unit of the Irkutsk region reported on 28 December 2001 that after G. had been diagnosed with tuberculosis a range of preventive measures had been carried out which included a course of preventive treatment with anti-tuberculosis medicines for those who had been in contact with G., and medical supervision for them, as well as disinfection of the bakery and the place of G.’s residence. There had been no reports of tuberculosis being contracted by persons who had been in contact with G. According to medical records, until his departure from IK-3 in February 2001 the applicant had not asked for medical assistance and had left IK-3 in a satisfactory state of health.
On 3 January 2002 the Irkutsk town prosecutor’s office informed the applicant about the results of its investigation. It noted that he had immediately received a full course of preventive anti-tuberculosis treatment, that he had undergone regular medical examinations and that he had never been found ill with tuberculosis during his detention in IK-3.
On 22 January 2002 the applicant complained further to the Irkutsk regional prosecutor. He did not deny the fact that he had received the preventive treatment but argued that it had been ineffective since he had later been diagnosed with tuberculosis. The applicant requested that criminal proceedings be brought against the employees of the medical unit of IK-3.
On 20 April 2002 the prosecutor’s office refused to initiate criminal proceedings. The decision stated that according to medical examinations of convict G., in particular an X-ray examination in February 2000 and a medical examination immediately before he started work at the bakery, he had had no tuberculosis prior to his work. He had had daily medical examinations since he started work at the bakery. On 28 November 2000 he had felt ill and complained to a doctor. He had immediately been hospitalised for medical examination. On 5 December 2000 he had been diagnosed with tuberculosis. After that all the convicts working at the bakery, including the applicant, had undergone a full course of preventive anti-tuberculosis treatment. The applicant had not complained of problems with his health and had not been found ill with tuberculosis while in IK-3. The bakery premises had been disinfected.
The prosecutor found that it was impossible to establish the source of the applicant’s infection with sufficient certainty. It held that there had been no failure on the part of the medical staff of penitentiary institution IK-3 to render medical aid to the applicant and that their behaviour lacked corpus delicti.
The applicant lodged further substantially the same complaints to the prosecutor’s office and other authorities which were answered in a similar way.
(b) The Oktyabrskiy District Court’s decision of 26 September 2002
On 29 August 2002 the applicant lodged a court appeal against the public prosecutor’s decision of 20 April 2002, alleging that the medical personnel of IK-3 had failed to examine G. before his work at the bakery, which had resulted in G.’s transmitting tuberculosis to him, and to provide him with appropriate medical examinations and treatment after G. had been found ill.
On 26 September 2002 the Oktyabrskiy District Court of Irkutsk examined his application. It noted that the applicant’s allegations had not been found to be based on real facts as a result of the investigation carried out by the prosecutor’s office. It found no reason to doubt the prosecutor’s findings and dismissed the appeal. It stated that the applicant could appeal against the decision to the Irkutsk Regional Court within ten days of receiving its copy.
In a letter of 22 January 2003 to the applicant the Oktyabrskiy District Court stated that it had dismissed his application and sent him a copy of the decision. The applicant never received a copy of the decision and did not appeal against it.
(c) Additional investigation
In 2005 the Prosecutor General’s office and FSIN carried out further investigations into the applicant’s complaints. Their findings were substantially the same as the earlier findings by the prosecutor’s office. They were based, in particular, on statements by, among others, four convicts, N., K., D. and S. who had been working at the bakery together with the applicant, their supervisor the chief of the breadmaking unit Ms R., the head of the IK-3 medical unit Mr M. and their doctor Ms B., as well as the applicant’s medical records. The following details and opinions were established and collected.
In April 2000 G. had been found ill with chronic bronchitis.
According to Ms B., it was impossible to assert that the applicant had contracted tuberculosis from G. as they had been in contact for a short period of time and G. had been found ill with tuberculosis without carriage of bacilli. Nor was it possible to establish with certainty when the applicant had been ill with tuberculosis as he had made no relevant complaints and manifested no signs of a serious illness.
According to Mr T., an acting chief doctor of the Irkutsk regional anti tuberculosis specialised clinic, it was hardly probable that the applicant had contracted tuberculosis in 2000. The residual effects in his lungs could have been caused by tuberculosis which he had had earlier at any age.
According to a report of 21 February 2005 of a commission presided by an acting head of the Medical Unit of FSIN of the Sverdlovsk region Mr K., taking into account the character of the changes, the applicant’s lung disease had been contracted long time ago. It appeared impossible to establish the exact time. The changes in the applicant’s lungs had been detected as a result of the detailed examination in the medical unit of IK-13 as the X-ray photographs had been made from two views. The previous X ray photographs had been made only from a frontal view and therefore had not detected those changes.
As regards the examination of the applicant’s appeal by the Oktyabrskiy District Court of Irkutsk, the Prosecutor General’s office acknowledged in its report approved on 1 March 2005 that the proceedings had been unfair since the judge had failed to inform the applicant and the prosecutor of the date of the hearing and had therefore deprived them of the opportunity to attend, and thereafter had failed to serve a copy of the decision on them. On 16 February 2005 the prosecutor’s office of the Irkutsk region had requested that the court decision of 26 September 2002 be quashed by way of supervisory review in view of the above violations.
The prosecutor’s application was granted.
(d) The Oktyabrskiy District Court’s decision of 31 May 2005
On 31 May 2005 the Oktyabrskiy District Court of Irkutsk heard the appeal by the applicant against the prosecutor’s decision of 20 April 2002 in the presence of representatives of the prosecutor’s office. It noted that the applicant had been duly apprised of the hearing but had failed to appear, without notifying the court of the reasons.
The court heard submissions by representatives of the prosecutor’s office including a prosecutor who had been in charge of the investigation into the applicant’s complaints carried out in 2002. It examined a deputy head of the medical unit of IK-3 Mr M., a doctor at IK-3, Ms B. and an engineer at the bakery Ms R., who had been performing their duties during the time of the applicant’s detention in IK-3 including the time of the incident with G. They stated that immediately after G. had been diagnosed with tuberculosis the applicant and other persons who had been in contact with G. had undergone a full course of anti-tuberculosis preventive treatment, and that the bakery and living premises had been disinfected. The applicant had undergone regular medical check-ups and had not complained to a doctor or the administration of IK-3 of any health problems either before or after the incident with G. They also stated that G. had undergone a medical examination before his work at the bakery which had not revealed tuberculosis.
The court also heard the chief tuberculosis specialist of the Medical Department of FSIN of the Irkutsk region Ms B. who had given similar statements and also explained that category VII of medical supervision, to which the applicant had been assigned in February 2001, had been envisaged at the time for healthy people, who had had tuberculosis in their past or had had changes in their lungs, for anti-relapse treatment. The applicant’s medical supervision had been discontinued a year later since he was healthy. According to Ms B., the applicant could not have contracted tuberculosis from G. because they had been in contact for a short period of time and G. had had tuberculosis without carriage of bacilli. The same opinion was stated by experts, a radiologist doctor of penitentiary establishment UK-272/6 of Irkutsk Mr F., who had been practising since 1964, and the head of the Irkutsk town anti-tuberculosis clinic Ms S. Mr F. also submitted to the court that X-ray photographs of the applicant’s lungs showed that the changes in his lungs could have occurred not earlier than two or three years before his examination in 2001. He could have been ill with tuberculosis before his conviction at any age including his childhood since sometimes a human body could overcome the disease without symptoms. Ms S. stated that the applicant’s X-ray photograph of 2000 displayed a small area of pathology without dynamics in the upper lobe of his left lung which showed that he had had tuberculosis earlier at any time including his childhood but in any event before his contact with G. in November 2000. The applicant had had spontaneously healed tuberculosis which meant that he had overcome the disease without being aware of it and without any treatment, which was not a rare case.
The court found that the applicant had not contracted tuberculosis from G. since the changes in his lungs had arisen before their contact, that the medical unit of IK-3 had examined G. before his work at the bakery, had competently carried out the applicant’s preventive treatment and examined him before his departure to IK-13.
The court held that it had no grounds to set aside the prosecutor’s lawful refusal of 20 April 2002 to bring criminal proceedings against the medical personnel of IK-3 which had been a reasonable result of the thorough investigation. There were no grounds to declare the behaviour of the medical personnel of IK-3 unlawful since they had undertaken all necessary measures for the applicant’s preventive treatment. It dismissed the applicant’s appeal. Its decision was subject to a further appeal to the Irkutsk Regional Court. There is no information in the case file as to whether the applicant appealed against that decision.
COMPLAINTS
THE LAW
Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government submitted that there were no reliable data to conclude that the applicant had contracted tuberculosis during his imprisonment or that he had not received a proper medical treatment. Mr G. had had tuberculosis without carriage of bacilli, that is, he had not been a source of infection for others and TB could not have spread via his respiratory system. The applicant’s medical records and experts’ conclusions confirmed that he had not been ill with tuberculosis during his stay in penitentiary establishments. He had residual effects of spontaneously healed TB with no dynamics. There has been no violation of Article 3. The Government noted that the applicant had had effective remedies in respect of his complaints about the alleged lack of adequate medical assistance. The prosecutor’s decision of 20 April 2002 and the Oktyabrskiy District Court’s decision demonstrated that his complaints had been thoroughly examined and dismissed as unfounded. The investigation into the applicant’s allegations had complied with the requirements of Article 3.
The applicant disagreed with the Government and maintained his complaints.
The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Such ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level 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 state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). Although the purpose of such treatment is a factor to be taken into account, in particular the question of whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).
The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Labita, cited above, § 120). Nevertheless, in the light of Article 3, the State must ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, the person’s health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI), with the provision of the requisite medical assistance and treatment (see, mutatis mutandis, Aerts v. Belgium, 30 July 1998, §§ 64 et seq., Reports of Judgments and Decisions 1998-V).
The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998-VIII).
The Court observes that as a result of the investigation carried out by the domestic authorities it was established, based inter alia on the applicant’s medical records, medical conclusions and witnesses’ statements, that the applicant had post-tuberculosis residual effects in the upper lobe of his left lung, which had been revealed as a result of his detailed medical examination in February 2001. They represented not an existing illness but a risk of relapsing into one. Since the moment those residual effects were diagnosed they have been stable and have shown no development. They were the result of old “spontaneously healed” tuberculosis which the applicant could have suffered at any age. Several medical experts had unanimously excluded the possibility of the applicant’s contracting tuberculosis in November 2000 from G. It was further established that G. had not been ill with tuberculosis before his work at the bakery, that he had not carried bacilli at the time of his diagnosis with tuberculosis and that immediately after G. had been found ill with tuberculosis the applicant and other convicts, who had worked jointly with G., had received a course of preventive anti-tuberculosis treatment, that the bakery and the living premises had been disinfected and that the applicant had made no complaints about any deterioration of his health.
On the facts, as established by the domestic authorities on the basis of ample evidence, in the absence of any medical conclusions and other evidence to the contrary on the part of the applicant, the Court finds that his allegations concerning the State’s responsibility for his tuberculosis or for the alleged lack of requisite medical assistance have not been made out.
The Court further finds that the applicant did not have an “arguable claim” within the meaning of Article 3, and that his situation did not, therefore, attract the protection of the procedural guarantees under the Convention provision in question.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government acknowledged a violation of Article 6 § 1 of the Convention in that the applicant had not been notified of the hearing on 26 September 2002 before the Oktyabrskiy District Court and had not been served a copy of its decision. In order to redress the applicant’s situation the prosecutor’s office had requested to set that decision aside. Its request had been granted and the applicant’s appeal had been examined again by the Oktyabrskiy District Court on 31 May 2005 and dismissed as ill-founded.
In his letter of 17 March 2006 the applicant submitted to the Court that he had not received any information from the authorities about the examination of the prosecutor’s application for supervisory review, nor of the outcome thereof.
The Court notes the Government’s submissions to the effect that the applicant cannot any longer claim to be a victim of the alleged violations of Article 6 of the Convention in view of the domestic authorities’ acknowledgment and redress of the alleged violations. The applicant disagrees, claiming that he was totally unaware of the outcome of the supervisory review proceedings and the ensuing fresh examination of his court appeal, implying therefore that similar violations had occurred in the course of the new set of proceedings. The Court does not consider it necessary to resolve this disagreement between the parties since the present complaint must in any event be declared inadmissible for the reason of inapplicability of Article 6 to the proceedings in question as set out below.
The Court observes that the applicant, considering the medical personnel of colony IK-3 responsible for his contracting tuberculosis and alleging that they had failed to provide him with requisite medical treatment, had lodged a criminal complaint against them. Admittedly, it would be open to the applicant to act in ensuing criminal proceedings as a civil party. However, his criminal complaint has not resulted in the institution of criminal proceedings and the laying of charges against those whom he considered responsible. It ended in the decision of the Irkutsk regional prosecutor’s office of 20 April 2002 not to pursue the matter, against which the applicant appealed. His appeal was dismissed by the Oktyabrskiy District Court of Irkutsk. The Court finds that the proceedings brought by the applicant before the Oktyabrskiy District Court to challenge the prosecutor’s decision not to prosecute third persons did not determine his “civil rights and obligations” (see, by contrast, Perez v. France [GC], no. 47287/99, §§ 57 72, ECHR 2004-I; see also Ramsahai and Others v. the Netherlands, no. 52391/99, § 434, 10 November 2005; Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 360, ECHR 2007 ...; and Duchoňová v. the Czech Republic (dec.), no. 29858/03, 2 October 2006). Therefore, Article 6 of the Convention is not applicable.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren
Nielsen Christos Rozakis
Registrar President