(Application no. 32704/04)
17 December 2009
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 Denis Vasilyev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Assault on the applicant and medical treatment
1. Assault on the applicant and his friend
2. Treatment at Hospital no. 33
3. Treatment at Burdenko Hospital and partial recovery
B. Investigations and judicial proceedings
1. Investigation into the assault (case no. 073041)
“Thus, it has been established that at the initial stage the investigation of case no. 73041 was carried out at a low professional level and in breach of the rules of criminal procedure. On many occasions proceedings were prematurely suspended on the ground that the persons responsible could not be identified. Certain officers of the Sokolinaya Gora police station of the Eastern Administrative District in Moscow were disciplined for violations of the rules of criminal procedure and inadequate management of the investigation. Investigation of case no. 1056 [medical negligence] was also held back because of significant failures.
Having regard to deficiencies in the investigation and in compliance with the directions of the Moscow city prosecutor’s office, additional investigative steps and operational measures are now being carried out in the above cases with a view to examining the events in a comprehensive and thorough fashion and establishing the criminal liability of those responsible.”
2. Investigation into the actions of the police officers Zharov and Volkov (case no. 229337)
“...[T]he court considers that it has not been shown that the defendants Volkov and Zharov acted in the knowledge of the fact that [the applicant and his friend] were in a state that was dangerous for their life and health because they could not know it, as they only spent a few minutes on the scene in the night time and as no injuries were visible. They decided that [the applicant and his friend] were in a state of alcohol or drug intoxication...
In support of their claim that Mr Volkov and Mr Zharov made a false report [to the officer-on-duty] the prosecution referred only to the testimony by the witness Mr Vancharin, who was a police officer but who was not authorised to take any reports. However, he was replacing the officer-on-duty, in breach of the regulations of the Sokolinaya Gora police station...
Upon receipt of such information, an officer-on-duty has an obligation to record it in the registration log, to check it and to record the results of the check. The court considers that the officer-on-duty, upon receiving information from Volkov and Zharov that the situation was under control, was required to verify it and obtain credible information about the situation. Mr Vancharin, however, did not do that and did not relay that information or the results of the check to the actual officer-on-duty... The court therefore lends credence to the testimony by Mr Volkov and Mr Zharov... because in these circumstances Mr Vancharin had no interest in telling the truth.”
3. Investigation into medical negligence (case no. 1056)
“From the moment of arrival (at 9.05 a.m. on 30 June 2001) and until the beginning of preparation for surgery (at 5.30 p.m. on 1 July 2001) the [applicant] was not adequately and objectively examined, the real clinical diagnosis was not made... and appropriate medical treatment was not indicated... Prolonged passive observation of the [applicant] not accompanied by clinical examination led to drastic deterioration of his condition and, as a consequence, to belated surgical intervention not based on clinical and lab tests which resulted in markedly negative post-traumatic and post-surgery complications for the [applicant]...
In the post-surgery period antibacterial treatment was indicated but given inconsistently and without appropriate supervision which, most likely, pre-determined subsequent development of suppurative inflammation of post-operative wounds, arachnoid membranes and medullary substances, osteomyelitis of the right parietal bone, etc...”
“The extent of damage resulting from the [applicant’s] prolonged stay in a medical institution without adequate medical assistance cannot be fully ascertained. It can only be asserted that his condition gravely deteriorated during that period and that irreversible brain changes progressed to the point where emergency surgery was required by life-saving indications...
The present study identified a number of defects in the medical care dispensed to [the applicant] at Hospital no. 33 of Moscow – in particular, unjustified conservative treatment, incomplete examination, belated and incomplete diagnosis, belated surgical intervention, inadequate medical measures – which failed to arrest development of the grave post-traumatic process and contributed to an unfavourable outcome and the [applicant’s] disability. However, it is not possible to measure the extent to which these defects affected the outcome because appropriate measurement methods do not exist.”
“Despite the existence of substantial discrepancies in the above-mentioned findings by two experts’ commissions as to the origins and development of [the applicant’s] disease and the professional level of treatment that was administered to him, neither commission could state that there was a link of causality between the treatment administered to [the applicant] and the consequences in the form of serious damage to the victim’s health.
In these circumstances, the investigation finds that there are no objectively verifiable factual indications that Doctors K., Ts, and B. from Hospital no. 33 failed to render medical assistance to [the applicant] without valid reasons, thus resulting in serious damage to his health, that is, that they committed the offence under Article 124 § 2 of the Criminal Code.”
II. RELEVANT DOMESTIC LAW
A. Criminal Code
B. The Police Act (Law no. 1026-I of 18 April 1991)
C. Regulation on Police Patrols (Order of the Ministry of the Interior no. 17 of 18 January 1993)
D. Regulation on Private Security Departments Attached to the Police (Government Resolution no. 589 of 14 August 1992)
E. Code of Criminal Procedure
I. ALLEGED INEFFECTIVENESS OF THE INVESTIGATION INTO THE ASSAULT ON THE APPLICANT
1. The applicable Convention provision
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
2. Compliance with Article 3
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF POLICE’S FAILURE TO RENDER ASSISTANCE TO THE APPLICANT
1. Compliance with Article 3 as regards the alleged ill-treatment
2. Alleged inadequacy of the investigation
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ALLEGED MEDICAL NEGLIGENCE
1. Compliance with Article 3 as regards adequacy of medical care
2. Alleged inadequacy of the investigation
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
VI. ALLEGATION OF HINDRANCE OF THE RIGHT OF INDIVIDUAL PETITION GUARANTEED BY ARTICLE 34 OF THE CONVENTION
VII. 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 UNANIMOUSLY
8. Holds that the allegation of hindrance of the exercise of the right of individual petition under Article 34 of the Convention has not been made out;
(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, EUR 75,000 (seventy-five thousand euros) in respect of pecuniary damage and EUR 78,000 (seventy-eight thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis