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PAKHOMOV v. RUSSIA - 44917/08 [2010] ECHR 1368 (30 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1368.html
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[2010] ECHR 1368
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FIRST
SECTION
CASE OF PAKHOMOV v. RUSSIA
(Application
no. 44917/08)
JUDGMENT
STRASBOURG
30 September 2010
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 Pakhomov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 9 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 44917/08) 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, Mr Anton Valeryevich
Pakhomov (“the applicant”), on 21 July 2008.
The
applicant, who had been granted legal aid, was represented by Mr S.
Onishchenko, a lawyer practising in Vladivostok. The Russian
Government (“the Government”) were represented by Mr G.
Matyushkin, Representative of the Russian Federation at the European
Court of Human Rights.
The
applicant alleged, in particular, that his conviction for drug
trafficking had been based on statements by an anonymous witness and
prosecution witnesses whom he had been unable to confront in open
court. In addition, in a letter of 9 June 2009 requesting priority
treatment for his application, the applicant complained of serious
deterioration of his health in view of the absence of adequate
medical assistance.
Further
to the applicant’s request, on 16 June 2009 the Court granted
priority to the application (Rule 41 of the Rules of Court).
On
23 September 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1980 and lives in the town of Artyom, Primorye
Region.
A. Criminal proceedings against the applicant
On
27 April 2007 a group of police officers entered the applicant’s
flat, intending to search it. The applicant, who had been offered the
opportunity to hand over any illegal substances before the search,
handed the police officers 2.5 grams of tobacco and marijuana
compound. No other illegal substances or money were found during the
subsequent search of the flat carried out by the police. The
applicant was arrested and taken to the Artyom town temporary
detention centre, where a police investigator, Mr S., informed
him that he had been arrested on suspicion of selling drugs to an
anonymous person, whom the police called Mr I., during a
police controlled purchase on 27 February 2007. The investigator
also notified the applicant of an identification parade scheduled for
the following day, in which Mr I. was to participate.
On
28 April 2007 the applicant was taken to the Artyom Town Department
of the Federal Service for Drug Control where he remained handcuffed
to a heating device for several hours. The identification parade did
not take place.
On
the same day the Artyom Town Court authorised the applicant’s
placement in custody for two months. He was transferred to temporary
detention facility no. IZ-25/1 in Vladivostok.
In
the middle of May 2007 the applicant was notified of another charge
brought against him. The prosecution authorities accused him of
selling drugs to Mr I. on another occasion, namely 9 March 2007.
On
11 June 2007 the police investigator, Mr S., served the applicant and
his lawyer with a bill of indictment. The investigation offered the
following version of events on which the charges against the
applicant were grounded. According to the investigating authorities,
on an unspecified date an anonymous person, whose personal data could
not be disclosed and who was called “Mr I.”, approached a
police officer, Mr Za., and informed the latter that he could buy
drugs from the applicant. The police officer Za. decided to act on
the information received from Mr I. and organised a police-controlled
purchase of drugs. He invited two soldiers serving in the local
military unit, Mr K. and Mr M., to act as lay witnesses during the
purchase. On 27 February 2007 police officer Za., accompanied by
another police officer, Mr G., two lay witnesses, Mr K. and Mr M.,
and Mr I., drove to the applicant’s house. On arrival to the
applicant’s block of flats, officer Za. gave Mr I. money to
purchase drugs from the applicant. Serial numbers of the bills were
recorded in advance. Mr I., accompanied by Mr K., left the car and
went to the applicant’s flat. Mr K. did not enter the flat,
waiting for Mr I. on the ground floor. Mr I. spent approximately
fifteen minutes in the applicant’s flat. After he had returned
to the car, Mr I. handed the police officers a package containing
2.08 grams of a substance, later identified by forensic experts as a
compound of tobacco and cannabis, and stated that he had bought drugs
from the applicant. The investigating authorities also insisted that
the same sequence of events, albeit with the participation of other
lay witnesses, Mr Se. and Mr B., occurred on 9 March 2007.
On
16 October 2007 the applicant’s lawyer recorded a conversation
with a Mr A., who insisted that he could identify Mr I. According to
Mr A., in the middle of March 2007 he had met with the person
identified as Mr I. The latter had told Mr A. that he had framed the
applicant in a drug case. According to Mr I., the police had arrested
him when he was carrying drugs and as a result he had been forced to
participate in two police-controlled drug purchases. Mr I. allegedly
explained that he had kept the money which the police officers had
given him for drug purchases and in return he had allegedly given the
police officers drugs which he had hidden in advance behind a heating
device in the hall near the applicant’s flat.
On
14 December 2007 the Artyom Town Court found the applicant guilty of
two counts of attempted drug trafficking and one count of drug
possession, and sentenced him to eight years’ imprisonment. The
conviction was based on the following evidence:
-
statements by Mr I., given during the pre-trial investigation and
read out in open court, despite the applicant’s objection. In
those statements Mr I. gave a detailed description of the events on
27 February and 9 March 2007 pertaining to his participation in
the police-controlled purchases of drugs from the applicant. As
follows from the Town Court’s judgment, Mr I.’s
personal data were not disclosed to the applicant. Mr I.’s
absence from trial hearings had been considered “exceptional”.
Having cited no reasons which could justify Mr I.’s absence
from the court hearing, the Town Court held that the absence was
prompted by “exceptional circumstances”. On a number of
occasions the defence unsuccessfully asked the Town Court to disclose
Mr I.’s identity.
-
statements made in open court by Ms M. and Ms D., lay witnesses who
had assisted the police officers during the search of the applicant’s
flat on 27 April 2007. Both Ms M. and Ms D. confirmed that the
applicant had voluntarily turned over to the police officers a small
package of a substance containing marijuana.
-
statements made in a trial hearing by Mr Se., who had acted as a lay
witness during the police-controlled purchase of drugs from the
applicant on 9 March 2007. Mr Se. explained that on a request from a
police officer he had followed Mr I. to the door of the applicant’s
flat. Mr I. had spent several minutes in the flat. After Mr I. left
the flat he had a small package, which he gave to the police
officers.
-
statements given by another lay witness, Mr B., during the pre-trial
investigation and read out in open court with the parties’
consent. Mr B.’s statements were similar to those given by Mr
Se.
-
statements by Mr K., a lay witness who had participated in the
police-controlled purchase of drugs from the applicant on 27 February
2007. Those statements were given by Mr K. during an interview with
an investigator and read out in a trial hearing. The Town Court,
without providing any further details, held that reasons for Mr K.’s
absence from the trial were “exceptional”. In his
statements Mr K. provided a detailed description of events on 27
February 2007 and corroborated the prosecution’s version.
-
statements by police officer Za., made in open court. The police
officer set out an account of events on 27 February, 9 March and
27 April 2007, insisting that on the first two dates Mr I. had
purchased drugs from the applicant during the police-controlled
operations and that on the later date drugs had been found in the
applicant’s flat during the search.
-
report on a body search of Mr I. on 27 February 2007 showing that Mr
I. had had no illegal substances or money on him before he took part
in the police-controlled purchase of drugs from the applicant.
-
report drawn up by police officer Za. on 27 February 2007 showing
that the latter had given Mr I. four 100-rouble bills to purchase
drugs from the applicant;
-
report of 27 February 2007 indicating that on his return from the
applicant’s flat Mr I. had handed the police officers a package
containing a phytogenous substance.
- an
expert report confirming that the substances which Mr I. had handed
to the police officers during the police-controlled operations on
27 February and 9 March 2007 contained cannabis.
- an
expert report, according to which cannabis handed over by Mr I. to
the police on 27 February and 9 March 2007 most probably had the same
origin. However, the cannabis which the applicant voluntarily turned
over to the police during the search of his flat was from a different
batch.
On
request by the defence the Town Court heard a number of witnesses and
rejected their testimony as unreliable. Two defence witnesses
testified that they had visited the applicant on 9 March 2007 and had
been in his flat at the time when the police had allegedly performed
the controlled drug purchase. They insisted that no one had visited
the applicant’s flat when they had been there and that the
applicant had not sold drugs to anyone. Another witness testified
that she had been in the applicant’s flat with her brother on
27 February 2007 at the time of the alleged drug purchase. She
stressed that there had been no other visitors. The Town Court
interviewed Mr So., the head of the military unit where lay witnesses
Mr K. and Mr P. had been performing military service. Mr So. stated
that, on a written request from the applicant’s lawyer, he had
had a conversation with Mr K., who had insisted that he had not seen
Mr I. entering the applicant’s flat. The Town Court also
studied a statement written by Mr K. at the end of that conversation.
Mr K. confirmed that after Mr I. had approached the door of the
applicant’s flat he had ordered Mr K. to go down to the ground
floor and thus Mr K. had been unable to observe Mr I. entering the
flat. The Town Court refused to call Mr A., whom the applicant had
asked to be questioned about Mr I.’s identity.
The
applicant’s lawyer appealed against the conviction, arguing,
inter alia, that the Town Court had read out statements by Mr
I. and Mr K., disregarding the objection by the defence to that
effect, and that it had refused to hear Mr A.
On
3 March 2008 the Primorye Regional Court upheld the judgment of 14
December 2007, endorsing the reasons given by the Town Court. As
regards the applicant’s argument concerning the statements by
Mr I. and Mr K., the Regional Court held as follows:
“The [Town] court read out the statements by Mr I.
and Mr K. in open court, complying with the requirements of Article
281 of the Russian Code of Criminal Procedure, because the [Town]
court found that the reasons for their absence from the hearings were
exceptional and [it] issued a reasoned judgment to that effect.”
The
Regional Court also concluded that the Town Court had rightfully
dismissed the applicant’s and his lawyer’s requests for
the disclosure of Mr I.’s identity.
On
15 January 2010 the Presidium of the Primorye Regional Court, by way
of a supervisory review, quashed the judgments of 14 December 2007
and 3 March 2008 in the part concerning the applicant’s
conviction for drug trafficking, and upheld the conviction for
possession of drugs found in his flat during the search. It stressed
that having based, to a substantial degree, the applicant’s
conviction for drug trafficking on statements by witnesses whom the
applicant had been unable to confront in open court, including the
anonymous witness I. and a lay witness K., the domestic courts had
violated Article 6 § 3 (d) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms. The
Presidium concluded that there was no evidence that the applicant was
guilty of drug trafficking. Having acquitted the applicant of that
charge, the Presidium reduced his sentence to two years’
imprisonment and authorised his immediate release, as he had already
served the entire sentence. The Presidium also confirmed the
applicant’s right to rehabilitation.
B. Medical assistance during imprisonment
The
following account has been drawn up from the medical records
submitted by the Government.
In
2003 the applicant was diagnosed with pulmonary tuberculosis. He
underwent treatment in a tuberculosis hospital in Artyom.
On
28 April 2007, on his admission to temporary detention facility no.
IZ-25/1, the applicant informed an attending prison doctor that he
had tuberculosis and complained of a cough and general fatigue. The
doctor noted in the admission record that an examination by a
tuberculosis specialist was required.
Three
days later the applicant underwent an X-ray examination which
revealed the presence of a tuberculoma, measuring two centimetres in
width and three centimetres in length, in the upper lobe of the left
lung and dense foci in the right lung. On the basis of the X-ray
examination the tuberculosis specialist recorded the following
diagnosis in the applicant’s medical history: “large
residual changes in the form of a tuberculoma on the left and dense
foci on the right after the recent tuberculosis; “D”
control is not required; R-control should be carried out twice a
year”. The next X-ray exam was prescribed for a month later.
On
29 June 2007 the applicant received the second chest X-ray
examination, which showed no relapse.
On
13 July 2007 the applicant requested to see a prison doctor to whom
he complained of fatigue, a high temperature in the evenings and
excessive sweating. The doctor diagnosed the applicant with acute
viral respiratory infection, authorised a number of analyses,
including general blood and urine tests, sputum analysis and a survey
X-ray exam, and prescribed treatment with floracyd, a cough medicine
and multivitamins.
A
survey X-ray examination performed on 16 July 2007 revealed the
reactivation of the tuberculosis and the need for in-patient
treatment for the applicant. The doctor’s diagnosis was
“infiltrative tuberculosis on the right side”.
On
17 July 2007 the applicant was transferred to the pulmonary
tuberculosis ward of the medical department in the detention
facility, where he remained until 3 April 2008. On 19, 20 and 23 July
2007 bacteriological sputum tests were performed by way of
bacterioscopy, and showed no mycobacterium
tuberculosis (“MBT”).
Subsequently similar tests were performed once a month, each time
producing negative results. On 23 July 2007 a sputum sample taken for
culture turned out positive. At the same time results of the
applicant’s drug susceptibility testing (“DST”)
were made available to the facility medical personnel, guiding the
choice of the applicant’s treatment regimen. Between 17 July
2007 and 25 March 2008 the applicant was subjected to an intensive
chemotherapy regimen, comprising a number of drugs: isoniazid,
pyrazinamide, rifampicin, ethambutol, streptomycin, phosphoglif and
multivitamins. During the initial stage of the treatment the
applicant adhered to a strict medication regime, having received
ninety doses of anti-bacteriological medicines. An intake of every
dose was observed by the facility medical staff. Attending
tuberculosis specialists examined the patient once in three or four
days in view of identifying whether a correction of the drug regimen
was necessary. Monthly clinical blood and urine analyses were also
carried out. Every two months the applicant received chest
radiography. Liver examinations were conducted regularly.
After
a sputum culture testing had showed that the applicant was no longer
smear positive and similar results had been received by way of sputum
smear bacterioscopy at completion of the intensive phase of the
treatment, the continuation phase of the therapy commenced,
comprising treatment with isoniazid, rifampicin and ethambutol (“HRE
regimen”).
The
applicant’s medical history contained a number of entries made
by attending tuberculosis specialists, recording the applicant’s
negative attitude towards the treatment and his refusal to take
anti-bacteriological medicines on at least five occasions. The
attending doctors had conversations with the applicant, persuading
him to continue the treatment and warning about a possible relapse of
the illness or development of severe multi-drug-resistant
tuberculosis. In addition, during examinations doctors occasionally
reminded him of the negative effects of treatment interruption.
Following
the applicant’s final conviction on 3 March 2008, on 3 April
2008 the applicant was discharged from the medical department of the
detention facility with a final diagnosis of infiltrative
tuberculosis of the right lung in the resolution and consolidation
phase and recommendations to continue treatment on an HRE regimen
with a daily special dietary food ration. He was sent for subsequent
treatment to Specialised Medical Establishment no. 47 (“the
tuberculosis hospital”) for prisoners suffering from
tuberculosis, located in the Primorye Region.
On
7 April 2008, on admission to the tuberculosis hospital, the
applicant was examined by a tuberculosis specialist. A clinical blood
analysis and sputum smear bacterioscopy were performed. It was
decided to continue the extension phase of the medicine regimen as
prescribed by medical specialists of the detention facility. A chest
X-ray examination and sputum culture testing were scheduled to be
performed at the end of the extension phase. The applicant was also
assigned a special diet.
Once
a month the applicant received a full medical examination. Each time
the attending tuberculosis specialists recorded the total number of
doses of anti-bacteriological medicines taken by the applicant.
Clinical blood and urine tests were performed every three months. A
sputum smear was regularly taken for bacterioscopy testing, revealing
no presence of MBT. The applicant’s medical record also showed
that medical personnel discussed with the applicant the necessity of
the treatment and adherence to a strict medical regimen.
On
25 February 2009 the applicant was examined by a medical panel
comprising a number of medical specialists. Having studied his
medical records, including results of three most recent X-ray
examinations, blood and urine analysis and sputum smear tests, the
panel issued the following diagnosis: “clinical recovery from
infiltrative pulmonary tuberculosis accompanied by the presence of
extensive post-tuberculosis changes in the form of foci and fibrous
foci... in both lungs”. A schedule showing future medical
procedures and their frequency was developed. The applicant was also
prescribed seasonal retreatment courses with isoniazid, ethambutol
and vitamins, to prevent relapse of the illness.
On
7 April 2009 the applicant was transferred to correctional colony no.
20. On arrival he was examined by a colony physician, who diagnosed
the applicant with acute maxillary sinusitis for which he received
treatment between 7 and 20 April 2009. As follows from the
applicant’s medical history, the correctional colony medical
staff complied fully with the recommendations issued by the
specialists of the tuberculosis hospital in respect of medical tests
and anti-relapse treatment for the applicant.
II. RELEVANT DOMESTIC LAW
A. Health care of detainees
1. Federal Law of 18 June 2001 no. 77-FZ “On
Prevention of Dissemination of Tuberculosis in the Russian
Federation”
Section 7. Organisation of anti-tuberculosis aid
“1. Provision of anti-tuberculosis aid
to individuals suffering from tuberculosis is guaranteed by the State
and is performed on the basis of principles of legality, compliance
with the rights of an individual and citizen, [and] general
accessibility in the amount determined by the Programme of State
guarantees for provision of medical assistance to citizens of the
Russian Federation, free of charge.
2. Anti-tuberculosis aid is provided to
citizens when they voluntarily apply [for such aid] or when they
consent [to such aid], safe for cases indicated in Sections 9 and 10
of the present Federal law and other federal laws...”
Section 8. Provision of anti-tuberculosis aid
“1. Individuals suffering from
tuberculosis who are in need of anti-tuberculosis aid receive such an
aid in medical anti-tuberculosis facilities, licensed to provide
[that aid].
2. Individuals who are or have been in
contact with an individual suffering from tuberculosis should undergo
an examination for detection of tuberculosis in compliance with
requirements of law of the Russian Federation...”
Section 9. Regular medical examinations
1. Regular medical examinations of persons
suffering from tuberculosis is performed in compliance with the
procedure laid down by a respective federal executive body...
2. Regular medical examinations of persons
suffering from tuberculosis is performed irrespective of the
patients’ or their representatives’ consent.
3. A medical commission appointed by the head
of a medical anti-tuberculosis facility... takes a decision
authorising regular medical examinations or terminating them and
records such a decision in medical documents...; an individual in
respect of whom such a decision has been issued, is informed in
writing about the decision taken.”
Section 10. Mandatory examinations and treatment of
persons suffering from tuberculosis
“2. Individuals suffering from
contagious forms of tuberculosis who... intentionally avoid medical
examinations aimed at detection of tuberculosis or avoid treating it,
should be admitted, by a court decision, to specialised medical
anti-tuberculosis establishments for mandatory examinations and
treatment.”
Section 12. Rights of individuals.... suffering from
tuberculosis
“2. Individuals admitted to medical
anti-tuberculosis facilities for examinations and (or) treatment,
have a right to:
receive information from the administration of the
medical anti-tuberculosis facilities on the progress of treatment,
examinations...
have meetings with lawyers and clergy in private;
take part in religious ceremonies, if they do not have a
damaging impact on the state of their health;
continue their education...
3. Individuals... suffering from tuberculosis
have other rights provided for by the laws of the Russian Federation
on health care...”
Section 13. Obligations of individuals... suffering
from tuberculosis
“Individuals... suffering from tuberculosis must;
submit to medical procedures authorised by medical
personnel;
comply with the internal regulations of medical
anti-tuberculosis facilities when they stay at those facilities;
comply with sanitary and hygiene conditions established
for public places when persons suffering from tuberculosis [visit
them].”
Section 14. Social support for individuals...
suffering from tuberculosis
“4. Individuals... suffering from
tuberculosis should be provided with medication free of charge for
out-patient treatment of tuberculosis by federal specialised medical
facilities in compliance with the procedure established by the
Government of the Russian Federation...”
2. Regulation on Medical Assistance to Detainees
Russian
law gives detailed guidelines for provision of medical assistance to
detained individuals. These guidelines, found in the joint
Decree of the Ministry of Health and Social Development and the
Ministry of Justice no. 640/190 on Organisation of Medical Assistance
to Individuals Serving Sentences or Detained (“the
Regulation”), enacted on 17 October 2005, are
applicable without exception to all detainees. In particular, section
III of the Regulation sets out the procedure for initial steps to be
taken by medical personnel of a detention facility on admission of a
detainee. On arrival at a temporary detention facility all detainees
should be subjected to preliminary medical examination before they
are placed in cells shared by other inmates. The examination is
performed with the aim of identifying individuals suffering from
contagious diseases and those in need of urgent medical assistance.
Particular attention should be paid to individuals suffering from
contagious conditions. No later than three days after the detainee’s
arrival at the detention facility he should receive an in-depth
medical examination, including X-ray. During the in-depth examination
a prison doctor should record the detainee’s complaints, study
his medical and personal history, record injuries if present, and
recent tattoos and schedule additional medical procedures, if
necessary. A prison doctor should also authorise laboratory analyses
to identify sexually transmitted diseases, HIV, tuberculosis and
other illnesses.
Subsequent
medical examinations of detainees are performed at least twice a year
or on detainees’ complaints. If a detainee’s state of
health has deteriorated, medical examinations and assistance should
be provided by medical personnel of the detention facility. In such
cases a medical examination should include a general medical check-up
and additional methods of testing, if necessary, with the
participation of particular medical specialists. The results of the
examinations should be recorded in the detainee’s medical
history. The detainee should be comprehensively informed about the
results of the medical examinations.
Section
III of the Regulation also sets the procedure for cases of refusals
by detainees to undergo a medical examination or treatment. In each
case of refusal, a respective entry should be made in the detainees’
medical record. A prison doctor should comprehensively explain the
detainee consequences of his refusal to undergo the medical
procedure.
Detainees
take prescribed medicines in the presence of a doctor. In a limited
number of cases the head of the medical department of the detention
facility may authorise his medical personnel to hand over a daily
dose of medicines to the detainee for unobserved intake.
Section
X of the Regulation regulates medical
examinations, monitoring and treatment of detainees suffering from
tuberculosis. It lays down a detailed account of medical procedures
to be employed, establishes their frequency, regulates courses of
treatment for new tuberculosis patients and previously treated ones
(relapsing or defaulting detainees). In particular, it provides that
when a detainee exhibits signs of a relapse of tuberculosis, he or
she should immediately be removed to designated premises (infectious
unit of the medical department of the facility) and should be sent
for treatment to an anti-tuberculosis establishment. The prophylactic
and anti-relapse treatment of tuberculosis patients should be
performed by a tuberculosis specialist. Rigorous checking of the
intake of anti-tuberculosis drugs by the detainee should be put in
place. Each dose should be recorded in the detainee’s medical
history. A refusal to take anti-tuberculosis medicine should also be
noted in the medical record. A discussion of the negative impacts of
the refusal should follow. Detainees suffering from tuberculosis
should also be transferred to a special dietary ration.
3. Anti-Tuberculosis Decree
On 21 March 2003 the Ministry of Health adopted Decree
no. 109 on Improvement of Anti-Tuberculosis Measures in the Russian
Federation (“the Anti-Tuberculosis Decree” or “Decree”).
Having acknowledged a difficult epidemic situation in the Russian
Federation in connection with a drastic increase in the number of
individuals suffering from tuberculosis, particularly among children
and detainees, and a substantial rise in the number of
tuberculosis-related deaths, the Decree laid down guidelines and
recommendations for country-wide prevention, detection and therapy of
tuberculosis which conform to international standards, identifying
forms and types of tuberculosis and categories of patients suffering
from them, establishing types of necessary medical examinations,
analyses and testing to be performed in each case and giving
extremely detailed instructions on their performance and assessment;
laid down rules on vaccination; determined courses and regimens of
therapy for particular categories of patients, and so on.
In particular, Addendum 6 to the Decree contains an
Instruction on chemotherapy for tuberculosis patients. The aims of
treatment, essential anti-tuberculosis drugs and their dose
combinations, as well as standard regimens of chemotherapy set
laid down by the Instruction for Russian
tuberculosis patients conformed to those recommended by the World
Health Organisation in Treatment of Tuberculosis: Guidelines for
National Programs (see below).
B. Witness testimony in criminal cases
Code of Criminal Procedure of the Russian Federation of
18 December 2001, in force since 1 July 2002 (“new CCrP”)
Article
281 of the new CCrP, in so far as relevant, reads as follows:
“1. Testimony previously given by a
victim or witness during the preliminary investigation or at the
trial may be read out... if the victim or witness fails to attend,
subject to the parties’ consent, save in cases listed in the
second part of the present Article.
2. If a victim or witness fails to appear in
court, the court may, at a party’s request or on its own
initiative, read out statements previously given by them in the
following cases:
1) victim’s or witness’s death;
2) grave illness precluding attendance at a
court hearing;
3) refusal by a victim or witness who is a
national of a foreign State to attend a hearing when summoned by the
court;
4) natural disaster or any other emergency
case precluding attendance at a court hearing.”
C. Right to rehabilitation following acquittal
The relevant provisions of the new CCrP read as
follows:
Article 134. Acknowledgment of the right to
rehabilitation
“1. A court in its judgment....
acknowledges the right to rehabilitation for an individual who has
been acquitted... At the same time the rehabilitated [person] should
have explained to them the procedure for compensation for damage
pertaining to criminal prosecution....”
Article 135. Compensation for pecuniary damage.
“1. Compensation for pecuniary damage
to a rehabilitated [person] includes:
salary, pension, allowances and other sources of income
which he lost as a result of the criminal prosecution;
his
property confiscated or seized by the State on the basis of the
judgment by which he had been convicted...;
fines
and legal costs and expenses which he paid in compliance with the
court’s judgment;
sums
paid by him for provision of legal services...;
other
expenses.
2. At any moment during the limitation period
established by the Russian Civil Code and after the rehabilitated
[person] received a copy of the judgment [by which he had been
acquitted]... he has the right to apply to [the court which had
issued the judgment] with a demand to compensate him damage...
...
No
later than a month after the demand for compensation was received,
the court... must determine its amount and issue a decision
authorising the payment in compensation for that damage. That payment
should take into account the inflation rate. ...”
Article 136. Compensation for non-pecuniary damage.
“1. A prosecutor should give an
official apology in the name of the State to the rehabilitated
[person] for damage caused to him.
An
action for compensation for non-pecuniary damage should be brought
within civil judicial proceedings....”
Article 138. Restoration of other rights of a
rehabilitated [person].
“1. Restoration of labour, pension,
housing and other rights of a rehabilitated [person] should be
performed in compliance with [the CCrP] established for execution of
court judgments....”
III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS
A. General health care issues
1. Recommendation Rec(2006)2 of the Committee of
Ministers to member states on the European Prison Rules, adopted on
11 January 2006 at the 952nd meeting of the Ministers’
Deputies (“the European Prison Rules”)
The
European Prison Rules provide a framework of guiding principles for
health services. The relevant extracts from the Rules read as
follows:
“Health care
39. Prison authorities shall safeguard the
health of all prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be
organised in close relation with the general health administration of
the community or nation.
40.2 Health policy in prisons shall be
integrated into, and compatible with, national health policy.
40.3 Prisoners shall have access to the
health services available in the country without discrimination on
the grounds of their legal situation.
40.4 Medical services in prison shall seek to
detect and treat physical or mental illnesses or defects from which
prisoners may suffer.
40.5 All necessary medical, surgical and
psychiatric services including those available in the community shall
be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least
one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at
all times that a qualified medical practitioner is available without
delay in cases of urgency.
...
41.4 Every prison shall have personnel
suitably trained in health care.
Duties of the medical practitioner
42.1 The medical practitioner or a qualified
nurse reporting to such a medical practitioner shall see every
prisoner as soon as possible after admission, and shall examine them
unless this is obviously unnecessary.
...
42.3 When examining a prisoner the medical
practitioner or a qualified nurse reporting to such a medical
practitioner shall pay particular attention to:
...
b. diagnosing physical or mental
illness and taking all measures necessary for its treatment and for
the continuation of existing medical treatment;
...
f. isolating prisoners suspected of
infectious or contagious conditions for the period of infection and
providing them with proper treatment;
...
43.1 The medical practitioner shall have the
care of the physical and mental health of the prisoners and shall
see, under the conditions and with a frequency consistent with health
care standards in the community, all sick prisoners, all who report
illness or injury and any prisoner to whom attention is specially
directed.
...
Health care provision
46.1 Sick prisoners who require specialist
treatment shall be transferred to specialised institutions or to
civil hospitals when such treatment is not available in prison.
46.2 Where a prison service has its own
hospital facilities, they shall be adequately staffed and equipped to
provide the prisoners referred to them with appropriate care and
treatment.”
2. 3rd General Report of the European
Committee for the Prevention of Torture (“the CPT Report”)
The complexity and importance of health care services
in detention facilities was discussed by the European Committee for
the Prevention of Torture in its 3rd
General Report (CPT/Inf (93) 12 - Publication Date: 4 June
1993). The following are the extracts from the Report:
“33. When entering prison, all
prisoners should without delay be seen by a member of the
establishment’s health care service. In its reports to date the
CPT has recommended that every newly arrived prisoner be properly
interviewed and, if necessary, physically examined by a medical
doctor as soon as possible after his admission. It should be added
that in some countries, medical screening on arrival is carried out
by a fully qualified nurse, who reports to a doctor. This latter
approach could be considered as a more efficient use of available
resources.
It is also desirable that a leaflet or booklet be handed
to prisoners on their arrival, informing them of the existence and
operation of the health care service and reminding them of basic
measures of hygiene.
34. While in custody, prisoners should be
able to have access to a doctor at any time, irrespective of their
detention regime... The health care service should be so organised as
to enable requests to consult a doctor to be met without undue
delay...
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.
As regards emergency treatment, a doctor should always
be on call. Further, someone competent to provide first aid should
always be present on prison premises, preferably someone with a
recognised nursing qualification.
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...
38. A prison health care service should be
able to provide medical treatment and nursing care, as well as
appropriate diets, physiotherapy, rehabilitation or any other
necessary special facility, in conditions comparable to those enjoyed
by patients in the outside community. Provision in terms of medical,
nursing and technical staff, as well as premises, installations and
equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy
and of the distribution of medicines. Further, the preparation of
medicines should always be entrusted to qualified staff
(pharmacist/nurse, etc.). ...
39. A medical file should be compiled for
each patient, containing diagnostic information as well as an ongoing
record of the patient’s evolution and of any special
examinations he has undergone. In the event of a transfer, the file
should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care
teams, in which particular incidents relating to the patients should
be mentioned. Such registers are useful in that they provide an
overall view of the health care situation in the prison, at the same
time as highlighting specific problems which may arise.
40. The smooth operation of a health care
service presupposes that doctors and nursing staff are able to meet
regularly and to form a working team under the authority of a senior
doctor in charge of the service. ...
54. A
prison health care service should ensure that information about
transmittable diseases (in particular hepatitis, AIDS, tuberculosis,
dermatological infections) is regularly circulated, both to prisoners
and to prison staff. Where appropriate, medical control of those with
whom a particular prisoner has regular contact (fellow prisoners,
prison staff, frequent visitors) should be carried out.”
3. Committee of Ministers Recommendation No. R (98) 7
on Health care in Prisons
A further elaboration of European expectations towards
health care in prisons is found in the appendix to Recommendation no.
R (98) 7 of the Committee of Ministers to Member States on the
ethical and organisational aspects of health care in prison (adopted
on 8 April 1998 at the 627th meeting of the Ministers’
Deputies). Primarily restating the European Prison Rules and CPT
standards, the Recommendation went beyond reiteration of the
principles in some aspects to include more specific discussion of the
management of certain common problems including transmissible
diseases. In particular, in respect of cases of tuberculosis, the
Committee of Ministers stressed that all necessary measures should be
applied to prevent the propagation of this infection, in accordance
with relevant legislation in this area. Therapeutic intervention
should be of a standard equal to that outside of prison. The medical
services of the local chest physician should be requested in order to
obtain the long-term advice that is required for this condition as is
undertaken in the community in accordance with relevant legislation
(Section 41).
B. Health care issues related to transmissible diseases
1. Committee of Ministers Recommendation no. R (93) 6
on Control of Transmissible Diseases in Prisons
The fact that transmissible diseases in European
prisons have become an issue of considerable concern prompted a
recommendation of the Committee of Ministers to Member States
concerning prison and criminological aspects of the control of
transmissible diseases and related health problems in prison (adopted
on 18 October 1993 at the 500th meeting of the
Ministers’ Deputies). The relevant extracts from the
Recommendation read as follows:
“2. The systematic medical examination
carried out on entry into prison should include measures to detect
intercurrent diseases, including treatable infectious diseases, in
particular tuberculosis. The examination also gives the opportunity
to provide health education and to give prisoners a greater sense of
responsibility for their own health....
15. Adequate financial and human resources
should be made available within the prison health system to meet not
only the problems of transmissible diseases and HIV/Aids but also all
health problems affecting prisoners.”
2. 11th General Report of activities of the
European Committee for the Prevention of Torture
An
expanded coverage of the issue related to transmissible diseases in
detention facilities was given by the European Committee for the
Prevention of Torture in its 11th General
Report (CPT/INF (2001) 16 published on 3 September 2001), a
discussion prompted by findings of serious inadequacies in health
provision and poor material conditions of detention which were
exacerbating the transmission of the diseases. Addressing the issue,
the CPT held as follows:
“31. The spread of transmissible
diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS
has become a major public health concern in a number of European
countries. Although affecting the population at large, these diseases
have emerged as a dramatic problem in certain prison systems. In this
connection the CPT has, on a number of occasions, been obliged to
express serious concerns about the inadequacy of the measures taken
to tackle this problem. Further, material conditions under which
prisoners are held have often been found to be such that they can
only favour the spread of these diseases.
The CPT is aware that in periods of economic
difficulties - such as those encountered today in many countries
visited by the CPT - sacrifices have to be made, including in
penitentiary establishments. However, regardless of the difficulties
faced at any given time, the act of depriving a person of his liberty
always entails a duty of care which calls for effective methods of
prevention, screening, and treatment. Compliance with this duty by
public authorities is all the more important when it is a question of
care required to treat life-threatening diseases.
The use of up-to date methods for screening, the regular
supply of medication and related materials, the availability of staff
ensuring that prisoners take the prescribed medicines in the right
doses and at the right intervals, and the provision when appropriate
of special diets, constitute essential elements of an effective
strategy to combat the above-mentioned diseases and to provide
appropriate care to the prisoners concerned. Similarly, material
conditions in accommodation for prisoners with transmissible diseases
must be conducive to the improvement of their health; in addition to
natural light and good ventilation, there must be satisfactory
hygiene as well as an absence of overcrowding.
Further, the prisoners concerned should not be
segregated from the rest of the prison population unless this is
strictly necessary on medical or other grounds...
In order to dispel misconceptions on these matters, it
is incumbent on national authorities to ensure that there is a full
educational programme about transmissible diseases for both prisoners
and prison staff. Such a programme should address methods of
transmission and means of protection as well as the application of
adequate preventive measures.
It must also be stressed that appropriate information
and counselling should be provided before and - in the case of a
positive result - after any screening test. Further, it is axiomatic
that patient-related information should be protected by medical
confidentiality. As a matter of principle, any interventions in this
area should be based on the informed consent of the persons
concerned.
Moreover, for control of the above-mentioned diseases to
be effective, all the ministries and agencies working in this field
in a given country must ensure that they co-ordinate their efforts in
the best possible way. In this respect the CPT wishes to stress that
the continuation of treatment after release from prison must be
guaranteed.”
C. Reports on the Russian Federation
1. The CPT Report on Russia
The CPT report on the visit to the Russian Federation
carried out from 2 to 17 December 2001 (CPT/INF (2003) 30) provides
as follows:
“102. The CPT is also seriously concerned by the
practice of transferring back from SIZO [temporary detention
facility] to IVS [temporary detention ward in police departments]
facilities prisoners diagnosed to have BK+ tuberculosis (and hence
highly contagious), as well as by the interruption of TB treatment
while at the IVS. An interruption of the treatment also appeared to
occur during transfers between penitentiary establishments.
In the interest of combating the spread of tuberculosis
within the law-enforcement and penitentiary system and in society in
general, the CPT recommends that immediate measures be taken to put
an end to the above-mentioned practice.”
2. The World Bank Report on Tuberculosis and Aids
Control Project in Russia
On
23 December 2009 the World Bank published the Implementation
Completion and Results Report (Report no. ICR00001281, Volume I)
on a loan granted to the Russian Federation for Tuberculosis and Aids
Control Project. The relevant part of the Report read as follows:
“According to the World Health Organization (WHO),
Russia was one of the 22 high-burden countries for TB in the world
(WHO, Global Tuberculosis control: Surveillance, Planning, Financing,
Geneva, 2002). The incidence of TB increased throughout the 1990s.
This was due to a combination of factors, including: (i) increased
poverty, (ii) under-funding of TB services and health services in
general, (iii) diagnostic and therapeutic approaches that were
designed for a centralized command-and-control TB system, but were
unable to cope with the social mobility and relative freedom of the
post-Soviet era, and (iv) technical inadequacies and outdated
equipment. Migration of populations from ex-Soviet republics with
high TB burdens also increased the problem. Prevalence rates were
many times higher in the prison system than in the general
population. Treatment included lengthy hospitalizations, variations
among clinicians and patients in the therapeutic regimen, and
frequent recourse to surgery. A shrinking health budget resulted in
an erratic supply of anti-TB drugs and laboratory supplies, reduced
quality control in TB dispensaries and laboratories, and inadequate
treatment. The social conditions favouring the spread of TB, combined
with inadequate systems for diagnosis, treatment, and surveillance,
as well as increased drug resistance, produced a serious public
health problem.
TB control in the former Union of Soviet Socialist
Republics (USSR) and in most of Russia in the 1990s was heavily
centralized, with separate hospitals (TB dispensaries), TB
sanatoriums, TB research institutes and TB specialists. The system
was designed in the 1920s to address the challenges of the TB
epidemic. Case detection relied strongly on active mass screening by
X-ray (phluorography). Specificity, sensitivity, and
cost-effectiveness considerations were not features of this approach.
Bacille Calmette-Guerin (BCG) immunization was a key feature of the
TB...
By 2000, there was more than a two-fold increase in TB
incidence, and mortality from TB increased 3 times, compared with
1990. The lowered treatment effectiveness of the recent years
resulted into an increase in the number of TB chronic patients,
creating a permanent ‘breeding ground’ for the infection.
At that moment, the share of pulmonary TB cases confirmed by
bacterioscopy did not exceed 25%, and the share of such cases
confirmed by culture testing was no more than 41% due to suboptimal
effectiveness of laboratory diagnosis, which led to poor detection of
smear-positive TB cases. Being a social disease, TB affected the most
socially and economically marginalized populations in Russia.”
D. General guidelines for tuberculosis therapy
The following are the extracts from Treatment of
Tuberculosis: Guidelines for National Programmes, World Health
Organisation, 1997, pp. 27, 33 and 41:
“Previously treated patients may have acquired
drug resistance. They are more likely than new patients to harbour
and excrete bacilli resistant to at least isoniazid. The re-treatment
regimen consists of initially 5 drugs, with 3 drugs in the
continuation phase. The patient receives at least 2 drugs in the
initial phase which are still effective. This reduces the risk of
selecting further resistant bacilli....
Patients with sputum smear-positive pulmonary TB should
be monitored by sputum smear examination. This is the only group of
TB patients for whom bacteriological monitoring is possible. It is
unnecessary and wasteful of resources to monitor the patient by chest
radiography. For patients with sputum smear-negative pulmonary TB and
extra-pulmonary TB, clinical monitoring is the usual way of assessing
response to treatment. Under programme conditions in high TB
incidence countries, routine monitoring by sputum culture is not
feasible or recommended. Where facilities are available, culture
surveys can be useful as part of quality control of diagnosis by
smear microscopy...
Directly observed treatment is one element of the DOTS
strategy, i.e. the WHO recommended policy package for TB control.
Direct observation of treatment means that a supervisor watches the
patient swallowing the tablets. This ensures that a TB patient takes
the right drugs, in the right doses, at the right intervals...
Many patients receiving self-administered treatment will
not adhere to treatment. It is impossible to predict who will or will
not comply, therefore directly observed treatment is necessary at
least in the initial phase to ensure adherence. If a TB patient
misses one attendance to receive treatment, it is necessary to find
that patient and continue treatment.”
50. In the fourth edition
of the Guidelines,
published in 2009,
the WHO recommended as follows:
“DST
[a drug susceptibility testing] before or at the start of therapy is
strongly recommended for all previously treated persons.” (p.
11)
THE LAW
I. PRELIMINARY CONSIDERATIONS
The Court observes at the outset that in his
application to the Court the applicant complained that the criminal
proceedings leading to his conviction for drug trafficking were
unfair. In a subsequent letter received by the Court on 9 June 2009
he successfully requested the Court to treat his application as a
priority, alleging that Russian prison authorities, although fully
aware that he was suffering from tuberculosis, did not provide him
with adequate medical treatment. In his observations, lodged with the
Court in April 2010, the applicant, while maintaining his
health-related complaint, adduced an alternative complaint. In
particular, he complained that on his admission to facility no.
IZ-25/1 he had been a healthy person as tuberculosis had been
“completely cured” and that the Russian authorities had
failed to safeguard his health as a relapse of the illness had been
caused by appalling conditions of his detention in that facility.
In
this connection the Court reiterates that it has jurisdiction to
review, in the light of the entirety of the Convention’s
requirements, the circumstances complained of by an applicant. In the
performance of its task, the Court is free to attribute to the facts
of the case, as established on the evidence before it, a
characterisation in law different from that given by the applicant
or, if need be, to view the facts in a different manner. Furthermore,
it has to take into account not only the original application but
also the additional documents intended to complete the latter by
eliminating initial omissions or obscurities (see Ringeisen
v. Austria, 16 July 1971, § 98, Series A no. 13,
as compared with § 79 and §§ 96-97 of that judgment).
Turning to the present case, the Court observes that
the new complaint pertaining to the conditions of the applicant’s
detention from 28 April 2007, when he was placed in detention
facility no. IZ-25/1, to 17 July 2007, when he was transferred
to the pulmonary tuberculosis ward of the medical department, was
submitted after notice of the initial application had been given to
the Government on 23 September 2009. In the Court’s view, the
new complaint raised under Article 3 of the Convention is not an
elaboration of his original complaints lodged with the Court almost
two years earlier, on which the parties have already commented. The
Court therefore decides not to examine the new complaint within the
framework of the present proceedings (see Nuray Şen v. Turkey
(no. 2) judgment of 30 March 2004, no. 25354/94, § 200;
Melnik v. Ukraine, no. 72286/01, §§ 61-63,
28 March 2006; Kravchenko v. Russia, no.
34615/02, §§ 26-28, 2 April 2009; and Isayev
v. Russia, no. 20756/04, §§
81-83, 22 October 2009).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Article 3 of the Convention that the
detention authorities had failed to take steps to safeguard his
health and well-being, having failed to provide him with adequate
medical assistance in respect of his tuberculosis. Article 3 reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
The
Government submitted that the Russian authorities had taken all
appropriate measures to safeguard the applicant’s health. On
admission to detention facility no. IZ-25/1 the applicant was
examined by a prison doctor. Having studied the applicant’s
medical history and having learnt that he had had tuberculosis since
2003, the doctor placed the applicant under proactive medical
supervision which included regular medical check-ups, X-ray
examinations, clinical analysis and so on. When a relapse of the
illness was recorded, the applicant was immediately moved to the
pulmonary tuberculosis ward of the facility medical department. The
treatment administered to the applicant by the prison doctors
corresponded to that laid down by the Anti-Tuberculosis Decree (see
paragraphs 38 and 39 above) which in its turn conformed to
recommendations given by the World Health Organisation for treatment
of tuberculosis (see paragraph 49 above). Positive elements in the
progress of the applicant’s illness were recorded by the
medical personnel during the treatment. The treatment resulted in
clinical recovery from tuberculosis. At the same time, despite the
positive effect of the treatment, the doctors continued their
supervision, assigning the applicant to regular medical examinations
and procedures, and providing him with seasonal further courses of
anti-tuberculosis treatment, to avoid a relapse. In addition, the
applicant was provided with a specialised enriched food regimen.
The
applicant stressed that he had acquired his illness in 2003. He
underwent necessary treatment and the illness was rendered inactive.
It was not until his arrest that his health seriously deteriorated in
view of the complete absence of medical attention. As a result, he
relapsed and he was forced to undergo painful and stressful
treatment, including agonising chemotherapy, for almost two years.
Moreover, the medical personnel of the detention facilities ignored
his complaints and requests. The proper treatment was only
administered after intervention by the applicant’s lawyer.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
(a) General principles
The Court reiterates that Article 3 of the Convention enshrines one
of the most fundamental values of democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim’s
behaviour (see, for example, Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV). 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 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, Ireland v. the United Kingdom, 18
January 1978, § 162, Series A no. 25).
Ill-treatment
that attains such a minimum level of severity usually involves actual
bodily injury or intense physical or mental suffering. However, even
in the absence of these, where treatment humiliates or debases an
individual, showing a lack of respect for or diminishing his or her
human dignity, or arouses feelings of fear, anguish or inferiority
capable of breaking an individual’s moral and physical
resistance, it may be characterised as degrading and also fall within
the prohibition of Article 3 (see Pretty v. the United Kingdom,
no. 2346/02, § 52, ECHR 2002-III, with further references).
In
the context of deprivation of liberty the Court has consistently
stressed that, to fall under Article 3, the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering and humiliation connected with the detention (see, mutatis
mutandis, Tyrer v. the United Kingdom, 25 April 1978,
§ 30, Series A no. 26, and Soering v. the United
Kingdom, 7 July 1989, § 100, Series A no. 161).
The State must ensure that a person is detained in conditions which
are compatible with respect for human dignity, that the manner and
method of the execution of the measure do not subject him to distress
or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention and that, given the practical demands
of imprisonment, his health and well-being are adequately secured
(see Kudła v. Poland [GC], no. 30210/96, §§
92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04,
§ 208, 13 July 2006). In most of the cases concerning the
detention of people who are ill the Court has examined whether or not
the applicant received adequate medical assistance in prison. The
Court reiterates in this respect that even if Article 3 does not
entitle a detainee to be released “on compassionate grounds”,
it has always interpreted the requirement to secure the health and
well-being of detainees, among other things, as an obligation on the
part of the State to provide detainees with the requisite medical
assistance (see Kudła, cited above, § 94;
Kalashnikov v. Russia, no. 47095/99, §§ 95 and
100, ECHR 2002-VI; and Khudobin v. Russia,
no. 59696/00, § 96, ECHR 2006-XII (extracts)).
The
“adequacy” of medical assistance remains the most
difficult element to determine. The CPT proclaimed the principle of
the equivalence of health care in prison with that in the outside
community (see paragraph 43 above). However, the Court does not
always adhere to this standard, at least when it comes to medical
assistance for convicted prisoners (as opposed to those in pre-trial
detention). While acknowledging that authorities must ensure that the
diagnosis and care are prompt and accurate (see Hummatov v.
Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November
2007; Melnik, cited above, §§ 104-106; and, mutatis
mutandis, Holomiov v. Moldova, no. 30649/05, § 121,
7 November 2006), and that where necessitated by the nature of a
medical condition supervision is regular and systematic and involves
a comprehensive therapeutic strategy aimed at curing the detainee’s
health problems or preventing their aggravation (see Hummatov,
cited above, §§ 109, 114; Sarban v. Moldova,
no. 3456/05, § 79, 4 October 2005; and Popov v.
Russia, cited above, § 211), the Court has also held
that Article 3 of the Convention cannot be interpreted as securing
for every detained person medical assistance at the same level as “in
the best civilian clinics” (see Mirilashivili v. Russia
(dec.), no. 6293/04, 10 July 2007). In another case the
Court went further, holding that it was “prepared to accept
that in principle the resources of medical facilities within the
penitentiary system are limited compared to those of civil[ian]
clinics” (see Grishin v. Russia, no. 30983/02,
§ 76, 15 November 2007).
On
the whole, the Court reserves sufficient flexibility in defining the
required standard of health care, deciding it on a case-by-case
basis. That standard should be “compatible with the human
dignity” of a detainee, but should also take into account “the
practical demands of imprisonment” (see Aleksanyan v.
Russia, no. 46468/06, § 140, 22 December 2008).
(b) Application of the above principles to
the present case
The
Court reiterates that it was not in dispute between the parties that
the applicant had contracted tuberculosis in 2003, long before his
arrest and placement in detention facility no. IZ-25/1 in April 2007.
According to the applicant, when he learned about the infection he
underwent treatment in a tuberculosis hospital in his home town.
Although the Government did not comment on the outcome of the
treatment, they did not dispute the applicant’s assertion that
the treatment had been a success, resulting in his recovery from
active tuberculosis. In any event, medical records produced by the
Government confirm that no signs of reactivation of the illness were
recorded on the applicant’s admission to facility IZ-25/1. In
this respect, the Court would like to stress already at this juncture
that the medical assessment of the applicant conducted during his
first days in the detention facility appear to comply fully with
international standards of tuberculosis control policy in prisons, a
recognised setting for transmission of tuberculosis (see paragraphs
43- 45 above). In particular, the Court notes that the applicant was
seen without delay by an attending prison doctor, who studied his
medical history, recorded complaints, organised a meeting with a
tuberculosis specialist and scheduled an X-ray examination. The
doctor’s recommendations were promptly put into practice.
Subsequent X-ray exams were also performed without undue delay.
However,
despite the steps taken by the facility administration which the
Court interprets as their evident commitment to control tuberculosis,
the applicant suffered a relapse of the illness less than three
months after his arrival in the facility. While the cause of the
reactivation of the illness is not the subject matter of the Court’s
examination (see paragraphs 51-53 above), it considers it necessary
to reiterate its constant approach that even if an applicant had
contracted tuberculosis while in detention, this in itself would not
imply a violation of Article 3, provided that he received treatment
for it (see Alver v. Estonia, no. 64812/01, § 54, 8
November 2005, and Pitalev v. Russia,
no. 34393/03, § 53, 30 July 2009, with further
references). However, the State does have a responsibility to ensure
prevention and treatment for prisoners in its charge and a lack of
adequate medical assistance for serious health problems not suffered
from prior to detention may amount to a violation of Article 3 (see
Hummatov, cited above, § 108 et seq.). This principle
should certainly be extrapolated to the case of the applicant, who
suffered a relapse of tuberculosis after his admission to the
detention facility. Absent or inadequate treatment for tuberculosis,
particularly when the disease has been contracted or reactivated in
detention, is most certainly a subject of the Court’s concern.
The Court is therefore bound to assess the quality of medical
services rendered to the applicant in the present case.
Having
studied the applicant’s medical records produced by the
Government, the authenticity and reliability of which the applicant
did not dispute, the Court has already established that after
admission to the detention facility the applicant was under constant
medical supervision. After the early symptoms of the reactivation of
the disease, such as fatigue, excessive sweating and high
temperature, began to manifest themselves and subsequent medical
examinations, including a survey X-ray exam, revealed a relapse of
the illness, the applicant was promptly transferred for in-patient
treatment to the pulmonary tuberculosis ward of the medical
department in the detention facility. In this respect the Court does
not lose sight of the timely and active screening actions of the
facility medical personnel in identifying the reactivation of the
applicant’s infection, a cornerstone measure in the modern
strategy of tuberculosis control and treatment.
The
Court further observes that the quality of the treatment provided to
the applicant following the detection of the tuberculosis relapse
appears to be adequate. In particular, the evidence put before the
Court shows that the Russian authorities employed all existing tools
(sputum smear bacterioscopy, culture testing and chest X-ray exams)
for correct diagnosis of the applicant, having considered the extent
of the disease and determined the tuberculosis severity to prescribe
appropriate therapy. In particular, it did not escape the Court’s
attention that a drug susceptibility test had been performed at the
initial stage of the diagnostic process, in line with the WHO’s
most recent recommendations (see paragraph 50 above). The test not
only allowed efficiently finalising diagnostic procedures and
allocating the applicant’s case to standardised treatment
category, but also guided the choice of appropriate regimen
adjustments given the results of the test. At the same time the Court
is satisfied that the DST did not delay the start of the applicant’s
treatment.
Having
been placed on a strict medication regime necessary for the
tuberculosis therapy when the initial stage of the treatment was
followed by the continuation stage as recommended by WHO for
re-treatment cases, the applicant received a number of
anti-tuberculosis medicines and concomitant antihistamine drugs,
which were administered to him in the requisite dosage, at the right
intervals and within the appropriate duration. During the entire
period of his treatment the applicant was subjected to regular and
systematic clinical and radiological assessment and bacteriological
monitoring, which formed part of the comprehensive therapeutic
strategy aimed at curing the disease. The detention authorities also
effectively implemented the doctors’ recommendations of a
special dietary ration necessary for the applicant to improve his
health (see, by contrast, Gorodnitchev v. Russia, no.
52058/99, § 91, 24 May 2007).
Furthermore,
the Court attributes particular weight to the fact that the facility
administration not only ensured that the applicant was attended by
doctors, his complaints were heard and he was prescribed a trial of
anti-tuberculosis medication, but they also created the necessary
conditions for the prescribed treatment to be actually followed
through (see Hummatov, cited above, § 116). The Court
notes that the intake of medicines by the applicant was supervised
and directly observed by the facility medical personnel throughout
the whole re-treatment regimen as required by the DOTS strategy (see
paragraph 49 above). In addition, in a situation when the authorities
met with the applicant’s occasional refusal to cooperate and
his resistance to the treatment they offered him psychological
support and attention, having provided clear and complete
explanations of medical procedures, the sought outcome of the
treatment and negative side-effects of interruption of treatment or
irregular medication (see, by contrast, Gorodnitchev, cited
above, § 91; Testa v. Croatia, no. 20877/04, § 52,
12 July 2007; and Tarariyeva v. Russia, no. 4353/03, §
80, ECHR 2006 XV (extracts)). The authorities’ actions
permitted the applicant’s adherence to the treatment and
compliance with the prescribed regimen to be assured, a key factor in
tuberculosis treatment success.
After
conviction, which made the applicant’s continued detention in
facility IZ-25/1 impossible, he was transferred to the tuberculosis
hospital. The medical records pronouncing the applicant’s
diagnosis on his discharge as “infiltrative tuberculosis of the
right lung in the resolution and consolidation phase”, as well
as negative results of sputum smear examinations, showed positive
dynamics of the applicant’s treatment, meaning that he was
recovering. The applicant’s transfer to the tuberculosis
hospital was accompanied by recommendations from doctors of the
detention facility no. IZ-25/1 to continue HRE treatment regimen. The
Court is particularly mindful of the fact that without bluntly
accepting the recommendations of the facility medical personnel, the
tuberculosis hospital specialists gave an independent assessment of
the applicant’s case on the basis of the clinical examinations,
radiography and bacteriological tests performed in the hospital.
Recommendations of the detention facility doctors having been
considered valid, the applicant continued the prescribed treatment
regimen. Nothing in the case file can lead the Court to the
conclusion that the applicant did not receive comprehensive medical
assistance during that stage of his tuberculosis treatment. The list
of tests submitted by the Government included regular X-ray exams,
sputum smear tests, further clinical analysis and examinations by
tuberculosis specialists. The applicant did not deny that medical
supervision had been provided and tests had been carried out in the
tuberculosis hospital, or that the prescribed medication had been
provided, as indicated in the medical records submitted by the
Government. In fact, he did not indicate any defect in his medical
care in the tuberculosis hospital.
Finally,
after the completion of the treatment resulting in the applicant’s
“clinical recovery from infiltrative pulmonary tuberculosis”
he remained under medical supervision aimed at prevention of a
relapse of the illness. A detailed list of future medical procedures
to follow up on the applicant’s condition and effectiveness of
the treatment was drawn up and seasonal retreatment courses were
prescribed. As it appears from the parties’ submissions, the
administration of the colony where the applicant had been sent from
the tuberculosis hospital followed through with the anti-relapse
recommendations.
To
sum up, the Court considers that the Government provided sufficient
evidence to enable it to conclude that the applicant received
comprehensive, effective and transparent medical assistance in
respect of his tuberculosis. Accordingly, there has been no violation
of Article 3 of the Convention on account of the alleged failure to
provide the applicant with requisite medical care during his
imprisonment.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained that while finding him guilty of drug
trafficking the domestic courts had relied heavily on statements by
the anonymous witness, Mr I., and a prosecution witness, Mr K., whom
he had been unable to confront in open court. He relied on Article 6
of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;”
A. Submissions by the parties
The
Government argued that the domestic authorities had taken steps to
remedy the alleged violation. In particular, on 15 January 2010 the
Presidium of the Primorye Regional Court quashed the applicant’s
conviction for drug trafficking and pronounced him innocent on that
charge in view of the lack of evidence of criminal conduct. As a
consequence, the applicant’s sentence was decreased to two
years and he was released, having served the entire sentence.
Moreover, the applicant acquired the right to rehabilitation,
enabling him, inter alia, to seek compensation for unlawful
conviction and detention.
The
applicant maintained his complaint.
B. The Court’s assessment
Admissibility
The
Court reiterates that under Article 34 of the Convention it is
entitled to receive applications from persons, non-governmental
organisations or groups of individuals “claiming to be the
victim of a violation” by a High Contracting Party of the
rights contained in the Convention and its Protocols. In situations
where an alleged violation has already occurred, subsequent events
can give rise to a loss of the status of “victim”,
provided that the national authorities have acknowledged, either
expressly or in substance, and then afforded redress for, the breach
of the Convention (see, among other authorities, Amuur v. France,
25 June 1996, § 36, Reports of Judgments and Decisions
1996 III).
Turning
to the facts of the present case, the Court observes that on 15
January 2010 the Presidium of the Primorye Regional Court expressly
acknowledged that the Artyom Town Court, which had heard the
applicant’s criminal case and had issued the judgment of 14
December 2007, and the Primorye Regional Court, which had examined
the case on appeal and upheld the conviction of drug trafficking in
the judgment of 3 March 2008, had committed a violation of
Article 6 § 3 (d) of the Convention, having grounded their
findings to a substantial degree on statements by witnesses,
including Mr I. and Mr K., who had never been heard in open court.
The Presidium quashed the conviction for drug trafficking, having
found that there was no evidence of the applicant’s guilt. The
effect of the proceedings which formed the basis for the applicant’s
complaints has thus also been quashed (see Ryabov v. Russia,
no. 3896/04, § 50, 31 January 2008).
The
Court further notes that following the judgment of 15 January 2010,
when the applicant’s sentence was reduced to two years in view
of his remaining conviction for drug possession, the applicant was
released without delay. In addition, by virtue of the Presidium’s
judgment he acquired the right to rehabilitation which, and it was
not disputed by the applicant, enabled him to seek compensation for
damages resulting from his conviction for drug trafficking and
detention and to claim restoration of other rights, if they had been
infringed as a result of the detention and conviction (see paragraph
41 above). While the Court notes that there is no evidence in the
file that the applicant has made use of his right to rehabilitation,
that legal avenue still remains open for him.
Having
regard to the content of the judgment of 15 January 2010, the
subsequent acquittal and the rehabilitation avenue which the
applicant is able to effectively employ, the Court finds that the
national authorities have acknowledged, and then afforded redress
for, the alleged breach of the Convention.
It
follows that the applicant can no longer claim to be a victim of the
alleged violation of Article 6 § 1 of the Convention within the
meaning of Article 34 of the Convention (see Hans-Joachim Enders
v. Germany, no. 25040/94, Commission decision of 12 April
1996; Fedosov
v. Russia (dec.), no.
42237/02, 5 January 2007; and Brinzevich
v. Russia (dec.),
no. 6822/04, 11 December 2007; and, mutatis mutandis,
Hajiyev v. Azerbaijan, no. 5548/03, 16 June 2005, and
Wong v. Luxemburg (dec.), no. 38871/02, 30 August 2005)
and that this complaint is to be rejected, pursuant to Articles 34
and 35 §§ 3 and 4.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and
in so far as these complaints fall within the Court’s
competence, it finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this part of
the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning inadequate
medical care during the applicant’s imprisonment admissible and
the remainder of the application inadmissible;
Holds that there has been no violation of
Article 3 of the Convention.
Done in English, and notified in writing on 30 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
