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VASYUKOV v. RUSSIA - 2974/05 [2011] ECHR 595 (5 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/595.html
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[2011] ECHR 595
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FIRST
SECTION
CASE OF VASYUKOV v. RUSSIA
(Application
no. 2974/05)
JUDGMENT
STRASBOURG
5 April
2011
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 Vasyukov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 15 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2974/05) 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 Aleksandr Mikhaylovich
Vasyukov (“the applicant”), on 28 December 2004.
The
applicant, who had been granted legal aid, was represented by Ms Y.
Yefremova and Mr M. Rachkovskiy, lawyers practising in Moscow. The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mr G. Matyushkin.
The
applicant alleged, in particular, that he had contracted tuberculosis
and had been denied adequate medical assistance in detention.
On
16 November 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
The Government objected to the joint examination of the
admissibility and merits of the application. Having examined the
Government’s objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1973 and lives in the town of Oryol.
A. Criminal proceedings against the applicant
On
14 February 1997 the applicant was arrested on suspicion of
manslaughter. He was allegedly severely beaten up after police
officers took him to a police station.
On
31 October 1997 the Sovetskiy District Court of the Oryol Region
found the applicant guilty of murder and sentenced him to twelve
years’ imprisonment. The judgment was upheld on appeal and
became final on 16 December 1997. Ten days later the applicant
was sent to serve his sentence in correctional colony no. 2, Oryol
Region.
B. The applicant’s state of health and the
quality of the medical assistance afforded to him in detention
Relying on a copy of the applicant’s medical
record and certificates issued in December 2007 by the acting head of
temporary detention facility no. IZ-57/1 in Oryol (“facility
no. 1”), the Government argued that on 25 February
1997, on admission to facility no. 1, the applicant had undergone a
chest fluorography examination, which revealed no signs of
tuberculosis. The Government further submitted that every six months
the applicant had been examined by medical specialists and had been
subjected to chest fluorography examinations for the purpose of
tuberculosis screening. The examinations revealed no presence of the
illness. As follows from the list of X-ray examinations enclosed with
the applicant’s medical record, between March 1997 and 30
October 2001 the applicant received seven fluorography examinations.
The authorities had fully complied with the schedule of one exam
every six months at the beginning of the applicant’s detention.
However, almost a year passed between the chest fluorography
examinations in 2000 and 2001.
On 29 October 1998 a tuberculosis specialist at
correctional colony no. 2 made the following entry in the applicant’s
medical record:
“[The applicant] is assigned to the 4th
[group] of tuberculosis regular medical supervision as [he] has been
in contact with inmate A. who suffers from tuberculosis...
[The applicant is prescribed] izoniazid 0.6 [mg]
once,... [multivitamins] [and] diet for two months.”
The applicant’s medical history (record no. 3607/415) drawn up
in the tuberculosis hospital of facility no. 1 identified the
applicant’s detention with inmate A. in October 1998 as the
cause of his tuberculosis.
According to the applicant, in September 2000 he had
been detained for several days in a punishment cell with an inmate,
Mr Ye., who was suffering from an active form of tuberculosis. Mr Ye.
had been constantly coughing up blood. The applicant’s requests
for a transfer to another cell received no response from the colony
administration. Soon after release from the punishment cell the
applicant had fallen ill. However, his numerous complaints to the
colony medical division had been to no avail. Relying on a
certificate issued by the Oryol Regional police department, the
applicant further argued that in March 2001 Mr Ye. had died from
tuberculosis. The Government averred that the applicant had never
been detained with the late Mr Ye. However, he had been detained with
a person bearing the same last name as Mr Ye. The applicant’s
cellmate at the time had not been suffering from an active form of
tuberculosis and therefore had not presented a danger to other
detainees.
On
30 October 2001 the applicant was once again subjected to
a fluorography examination, which detected tuberculosis changes
in the form of dense foci and local fibrosis in his left lung.
According to the Government, on 15 November 2001 the
applicant was transferred to the tuberculosis hospital in facility
no. 1 for treatment. However, it appears from the applicant’s
medical record and certificates issued by the acting head of facility
no. 1 and the director of correctional colony no. 2, it was not until
7 December 2001 that the applicant was admitted to the facility’s
tuberculosis hospital. Following a number of tests doctors diagnosed
the applicant with “focal pulmonary tuberculosis, [type] 1A,
[smear-negative results for] mycobacterium tuberculosis (“MBT”)”.
Between 17 December 2001 and 14 February 2002 the applicant was
subjected to an intensive chemotherapy regimen, comprising a number
of drugs: isoniazid, rifampicin, ethambutol and tisamid. During the
initial stage of the treatment the applicant adhered to a strict
medication regime and received sixty doses of anti-bacteriological
medicines. On 15 February 2002 the continuation phase of the
therapy commenced, comprising treatment with 120 doses of isoniazid
and rifampicin (“HR regimen”). The chemotherapy regimen
was accompanied by pathogenetic and general health-improving therapy
with a daily special dietary food ration. The intake of every dose
was observed by the hospital staff. As follows from the applicant’s
medical record, clinical blood and urine analyses, sputum monitoring,
as well as regular chest radiography examinations, were conducted
regularly during the applicant’s treatment in the hospital.
On
26 June 2002 the applicant was discharged from the tuberculosis
hospital with a final diagnosis of “focal tuberculosis of the
left lung in the resolution phase” and recommendations to
continue treatment with isoniazid and ethambutol (“HE regimen”)
accompanied by a daily special dietary food ration. The doctors also
indicated that the next X-ray examination should be carried out
within three months and that clinical blood and urine analysis and
sputum monitoring should be performed once in three months.
Between
27 June and 25 October 2002 the applicant was detained in
correctional colony no. 2. His medical record shows that on 28 June
2002 the colony doctor made a note that the applicant was to receive
special dietary food. On 9 October 2002 the applicant was examined
for the first time by a colony doctor, who once again confirmed that
the applicant was suffering from focal tuberculosis of the left lung.
The doctor authorised a chest X-ray exam and sputum testing. On
22 October 2002 the applicant was sent to Oryol town
tuberculosis hospital to undergo prescribed examinations.
On
31 October 2002, having studied the applicant’s medical
records, including the results of an X-ray examination and the three
sputum smear tests performed in October 2002, a medical panel
comprising a number of medical specialists took into account the
positive dynamic of the applicant’s treatment and issued the
following diagnosis: “focal tuberculosis of the upper lobe of
the left lung in the resolution and consolidation phase,... (fading
of the tuberculosis process)”. On 18 November 2002 the
applicant was transferred back to correctional colony no. 2 with a
recommendation to continue outpatient treatment on a two-month HE
regimen twice a year.
During his first medical examination in the colony on
13 January 2003 the applicant complained of fatigue and headache. A
chest fluorography exam performed on 5 February 2003 revealed
singular small residual patches in the upper lobe of the applicant’s
left lung. In early March 2003 the applicant was prescribed
prophylactic treatment with isoniazid and ethambutol. A subsequent
chest fluorography exam, on 29 April 2003, showed numerous firm
patches in the left lung. The colony tuberculosis specialist made an
entry in the applicant’s medical record, noting no reason to
amend his diagnosis. A subsequent X-ray exam, on 21 July 2003, led to
the applicant being diagnosed with “local fibrosis in the upper
lobe of the left lung [and] small firm patches”. A month later
a colony tuberculosis specialist examined the applicant, recording
the absence of complaints and authorising another course of
prophylactic treatment on an HE regimen starting from 1 September
2003. Clinical blood and urine tests and a chest fluorography exam
performed on completion of the treatment confirmed the diagnosis made
on 21 July 2003.
In December 2003 colony medical staff developed a
schedule showing future medical procedures and their frequency. In
particular, the applicant was to undergo a fluorography examination
once in three months and to be subjected to blood, urine and smear
testing twice a year. The resumption of the prophylactic treatment on
an HE regimen every six months was also recommended. That schedule
was upheld on 27 February 2004 by a special tuberculosis medical
panel which, having studied the applicant’s medical records,
issued the following diagnosis: “clinical recovery from
pulmonary tuberculosis accompanied by residual changes in the form of
firm foci in the upper lobe of the left lung”.
In the beginning of March 2004 the applicant became
extremely ill. A chest fluorography exam carried out on 23 March 2004
showed that he had a left-sided spontaneous pneumothorax. On 27 March
2004 the applicant was admitted to the tuberculosis hospital in
facility no. 1 in Oryol. On the basis of another X-ray exam, which
showed that the applicant had suffered a complete collapse of the
left lung and in view of his complaints of severe chest pain and
dyspnea (breathlessness) at rest, on 29 March 2004 he was
transferred to the surgical department of the Oryol Regional
Tuberculosis Hospital where he was immediately subjected to a chest
tube drainage of the left pleural cavity. On 13 April 2004, after an
X-ray confirmed the re-expansion of the left lung, the chest tube was
removed and the applicant was discharged from the Regional Hospital
to the tuberculosis hospital in facility no. 1. The discharge was
effected with a recommendation that the applicant undergo an
intensive two-month chemotherapy regimen with four drugs: isoniazid,
rifampicin, pyrazinamide and ethambutol (“2 HRZE regimen”).
The applicant remained in the facility tuberculosis hospital until 6
May 2004. A prescription certificate attached to the applicant’s
medical record shows that he received four anti-bacteriological
medicines between 14 April and 6 May 2004.
On
19 May 2004 the applicant arrived in correctional colony no. 2. When
he was admitted a colony doctor made the following entry in the
applicant’s medical record: “arrived from [the
tuberculosis hospital of facility no. 1] in Oryol with diagnosis of
clinical recovery from pulmonary tuberculosis accompanied by residual
changes in the form of firm foci in the upper lobe of the left lung.
Prophylactic treatment [is to be carried out] twice a year for two
months, [and] an X-ray examination [and] clinical blood and urine
tests [are to be performed] twice a year. Diet food ration until 1
June 2005”.
It
appears from the applicant’s medical record that the schedule
of X-ray examinations and clinical testing was fully complied with.
However, in August 2004 the applicant lodged a complaint with the
Prosecutor General’s office alleging inadequate medical
assistance. The complaint was readdressed to the Oryol Regional
Prosecutor. No response followed.
The applicant’s medical history contained a
number of entries made by attending tuberculosis specialists,
recording the applicant’s negative attitude towards the
treatment. In particular, on 1 September 2004 the colony doctor
reported the applicant’s refusal to take a two-month
prophylactic course of anti-bacteriological drugs. In February 2005
the colony medical staff recorded the applicant’s refusals to
submit to an X-ray examination and blood, urine and sputum tests. It
was also noted that the applicant did not want to confirm his
refusals in writing. Numerous further attempts in March and April
2005 by the colony medical staff to persuade the applicant to submit
to medical procedures and to undergo prophylactic treatment were
unsuccessful. On 28 June 2005 the applicant was summoned to the
colony medical unit where, in the presence of the director of the
correctional colony and representatives of the Moscow Human Rights
Commission, it was once again explained to him that it was necessary
to continue treatment and undergo medical examinations, and he was
warned that a relapse was possible. The applicant wrote a statement
that he was willing to submit to medical examinations and treatment,
on condition that he was admitted to the tuberculosis hospital of
facility no. 1 for examinations by independent medical specialists
invited by his relatives. When two days later the applicant was made
an offer to be sent to Livny Town Hospital he refused it.
Early
in August 2005 the applicant applied to Livny District Court seeking
to be released on parole on health grounds. In particular, the
applicant argued that his tuberculosis and the absence of effective
treatment made him eligible for release. On 5 August 2005 the
District Court stayed the proceedings so that a thorough medical
examination of the applicant could be carried out. The examination
was to be performed in the tuberculosis hospital in facility no. 1.
Between
20 and 25 August 2005 the applicant underwent medical examinations,
including an X-ray exam and clinical blood analysis, in the
tuberculosis hospital in facility no. 1. He, refused however to
submit to urine and sputum smear and culture testing and to undergo
an electrocardiogram, citing “personal considerations”.
Having observed no pathology, the hospital doctors confirmed the
applicant’s previous diagnosis of clinical recovery from
tuberculosis and declared that he was fit to continue serving his
sentence in the correctional colony.
On
9 February 2006 the District Court dismissed the applicant’s
request for release, relying on the results of the applicant’s
medical examination in August 2005 and finding that the applicant’s
health did not preclude him from serving the sentence. The applicant
did not appeal.
All entries made by attending doctors in the
applicant’s medical history between 1 September 2005 and
February 2007 recorded that he was refusing to undergo seasonal
tuberculosis treatment and/or to submit to medical observations and
testing. For instance, on 14 April 2006 the applicant was visited by
a representative of the Medical Department of the Oryol Regional
Service for Execution of Sentences. The visit was carried out in
response to a complaint from the applicant’s mother about the
authorities’ alleged failure to provide the applicant with
effective medical assistance. The applicant firmly refused to talk to
the representative and protested that he did not wish to have any
such contact in the future. In May 2006 the head of the medical
department of the correctional colony, assisted by a physician from
the Human Rights Committee, examined the applicant. The latter
complained of shortness of breath, fatigue, dizziness and excessive
perspiration. An X-ray examination did not reveal any changes in the
lungs. The applicant refused a request that he submit to additional
clinical examinations. His refusals were attested to by written
statements of at least two members of the colony medical staff.
In
August 2007 the director of correctional colony no. 2 lodged an
application with the Livny District Court of the Oryol Region
requesting that the applicant be compulsorily admitted to Special
Medical Tuberculosis Establishment no. 3 in the Tula Region for an
in-depth medical examination and prophylactic treatment for
tuberculosis. The colony director argued that since August 2004 the
applicant had on a number of occasions refused to submit to
prophylactic and clinical examinations, which violated sanitary and
anti-epidemic regulations. The applicant’s refusals made it
impossible for the colony medical personnel to observe the dynamic
development of the illness and to effectively control and treat it if
necessary. The colony director insisted that the applicant’s
behaviour presented a danger to a large number of detainees and
colony staff members who were in contact with the applicant.
The
applicant and his representatives objected, arguing that the District
Court lacked jurisdiction to authorise the applicant’s
admission to a hospital against his will, as he did not suffer from
the contagious form of tuberculosis. In any event, the applicant was
ready to submit to medical observations if they were to be carried
out by specialists from medical establishments other than those in
correctional colony no. 2 or detention facility no. 1. He insisted
that the medical assistance afforded to him in those two facilities
had been inadequate and ineffective.
On
14 August 2007 the District Court adjourned the proceedings, having
authorised a forensic medical examination of the applicant by
specialists from the Oryol Regional Forensic Medical Expert Bureau to
determine the form of tuberculosis from which the applicant suffered.
The District Court held, in so far as relevant, as follows:
“By virtue of Article 10 § 2 of the Russian
law “On Prevention of Dissemination of Tuberculosis in the
Russian Federation” individuals suffering from contagious forms
of tuberculosis who... intentionally avoid medical examinations aimed
at detecting tuberculosis, or avoid treating it, shall be admitted,
by court decision, to specialised medical anti-tuberculosis
establishments for mandatory examinations and treatment.
By virtue of Article 18 § 3 of the Russian
Penitentiary Code individuals sentenced to imprisonment who are
suffering from contagious forms of tuberculosis shall be admitted for
mandatory treatment by the detention facility administration
following a decision by a medical panel.
The case file materials do not contain any information
on the form of tuberculosis from which [the applicant] is
suffering... The colony representative also did not provide such
information in court hearings. The court therefore considers that
special knowledge in the field of medicine is required for the
correct decision in the present case, and that it is necessary to
perform a complex forensic medical examination to determine the state
of [the applicant’s] health”.
On
11 September 2007 the applicant was transferred to facility no. 1 to
receive the expert examination. He was sent back to the correctional
colony on 19 October 2007. On 25 September 2007 the Expert Bureau
issued a report, noting that it was impossible to determine the form
of tuberculosis from which the applicant was suffering because of the
latter’s refusal to submit to medical examinations, and given
the absence of any recent information in the applicant’s
medical record describing the state of his health. On 20 December
2007 the Livny District Court, finding that in 2006 and 2007 the
applicant had repeatedly refused to undergo medical examinations,
testing and seasonal prophylactic treatment and that the possibility
of a relapse could thus not be excluded, ordered the applicant’s
placement in Special Medical Tuberculosis Establishment no. 3 in the
Tula Region. That decision was upheld on appeal by the Oryol Regional
Court on 13 February 2008.
The
applicant’s medical record shows that while detained in the
correctional colony between 19 October and 28 December 2007 the
applicant continued refusing to submit to medical examination, X-ray
exams, clinical testing and seasonal prophylactic treatment. Each
time, in response to the applicant’s refusal, colony staff
members drew up reports recording the refusal and describing the
applicant’s behaviour.
The
most recent medical certificate, dated 28 December 2007, issued in
correctional colony no. 2 and submitted to the Court by the
Government, reads as follows:
“[The applicant’s skin and visible mucous
membrane are clean. Normosthenic [athletic] type; satisfactory
nutrition; the osteoarticular skeleton is without deformations;
movements are entirely preserved. [The applicant] refused to submit
to an objective examination (palpation, percussion, auscultation,
anthropometric measuring). [He] has no complaints; the state of his
health is satisfactory. At present [his] diagnosis is: clinical
recovery from pulmonary tuberculosis, [Supervision Group Type] 3
until February 2007; the tuberculosis control was not cancelled as
[he] is refusing to undergo medical examinations and treatment.”
In
the meantime, in 2007 the applicant lodged an action against the
Russian Ministry of Justice, the Oryol Regional Service for Execution
of Sentences and correctional colony no. 2, seeking, inter alia,
compensation for damage caused to his health as a result of his
having contracted tuberculosis in detention and inability to receive
effective medical assistance.
On
3 June 2008 the Livny District Court dismissed the applicant’s
claim for damages, finding no evidence of fault in the authorities’
actions and no causal link between their actions and the damage
caused to the applicant’s health as a result of his having
contracted tuberculosis. While issuing the judgment, the District
Court rejected as unreliable statements by a number of applicant’s
former inmates, who had argued in open court that inmates suffering
from contagious forms of tuberculosis had frequently been detained
with healthy inmates in correctional colony no. 2 and that many of
them had contracted tuberculosis during their detention in that
facility. The District Court’s judgment became final on 17
September 2008 when the Oryol Regional Court upheld it on appeal.
The
applicant was released in 2009, having served his entire sentence.
II. RELEVANT DOMESTIC LAW
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 the principles of legality,
compliance with the rights of the 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 shall be provided to
citizens when they voluntarily apply [for such aid] or when they
consent [to such aid], save 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 shall receive such aid in
medical anti-tuberculosis facilities licensed to provide [it].
2. Individuals who are or have been in
contact with an individual suffering from tuberculosis shall undergo
an examination for the detection of tuberculosis in compliance with
the laws of the Russian Federation...”
Section 9. Regular medical examinations
“1. Regular medical examinations of persons
suffering from tuberculosis shall be performed in compliance with the
procedure laid down by a competent federal executive body...
2. Regular medical examinations of persons
suffering from tuberculosis shall be performed irrespective of the
patients’ or their representatives’ consent.
3. A medical commission appointed by the head
of a medical anti-tuberculosis facility... shall take decisions
authorising regular medical examinations or terminating them and
record such decisions in medical documents...; an individual in
respect of whom such a decision has been issued, shall be 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
detecting tuberculosis, or avoid treating it, shall be admitted, by
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,
shall 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 shall
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 shall;
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 not suffering from tuberculosis [visit
them].”
Section 14. Social support for individuals...
suffering from tuberculosis
“4. Individuals... suffering from
tuberculosis shall 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...”
Regulation on Medical Assistance to Detainees
Russian
law gives detailed guidelines for the provision of medical assistance
to detained individuals. These guidelines, found in joint
Decree no. 640/190 of the Ministry of Health and Social Development
and the Ministry of Justice, on Organisation of Medical Assistance to
Individuals Serving Sentences or Detained (“the Regulation”),
enacted on 17 October 2005, are applicable to
all detainees without exception. 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 must 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
or in need of urgent medical assistance. Particular attention must 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 fluorography. 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 at a detainee’s request. 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 fully informed of the results of the
medical examinations.
Section
III of the Regulation also sets out the procedure for cases of
refusal by detainees to undergo medical examination or treatment. In
each case of refusal, a corresponding entry should be made in the
detainee’s medical record. A prison doctor should fully explain
to the detainee the 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, and 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. Prophylactic and
anti-relapse treatment of tuberculosis patients should be carried out
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 effects of the
refusal should follow. Detainees suffering from tuberculosis should
also be put on a special dietary ration.
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 “the
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 in
respect of tuberculosis, in conformity with 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; it also laid down rules on vaccination, determined
courses and regimens of therapy for particular categories of
patients, etc.
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 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).
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 as
regards 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 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 practised 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 reported 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.”
Health care 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 its 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 (fluorography). Specificity, sensitivity, and
cost-effectiveness considerations were not features of this approach.
Bacille Calmette-Guerin (BCG) immunization was a key feature of the
TB control system...
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 in 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.”
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:
“Treatment regimens have an initial (intensive)
phase lasting 2 months and a continuation phase usually lasting 4-6
months. During the initial phase, consisting usually of 4 drugs,
there is rapid killing of tubercle bacilli. Infectious patients
become non-infectious within about 2 weeks. Symptoms improve. The
vast majority of patients with sputum smear-positive TB become
smear-negative within 2 months. In the continuation phase fewer drugs
are necessary but for a longer time. The sterilizing effect of the
drugs eliminates remaining bacilli and prevents subsequent relapse.
In patients with smear positive pulmonary TB, there is a
risk of selecting resistant bacilli, since these patients harbour and
excrete a large number of bacilli. Short-course chemotherapy regimens
consisting of 4 drugs during the initial phase, and 2 drugs during
the continuation phase, reduce this risk of selecting resistant
bacilli. These regimens are practically as effective in patients with
initially resistant organisms as in those with sensitive organisms.
In patients with smear negative pulmonary or
extra-pulmonary TB there is little risk of selecting resistant
bacilli since these patients harbour fewer bacilli in their lesions.
Short-course chemotherapy regimens with three drugs during the
initial phase, and two drugs in the continuation phase, are of proven
efficacy...
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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Article 3 of the Convention that he had
contracted tuberculosis during his detention and that the authorities
had not taken steps to safeguard his health and well-being, having
delayed diagnosing him with tuberculosis and failed to provide him
with adequate medical assistance in the correctional colony. Article
3 of the Convention 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 firstly argued that it was impossible to establish “beyond
reasonable doubt” that the applicant had contracted
tuberculosis in detention. They reasoned that according to medical
specialists and research, the majority of the Russian adult
population and, consequently, the majority of individuals entering
the Russian prison system, are already infected with mycobacterium
tuberculosis (“MBT”). They cited statistical data,
arguing that out of 100,000 persons infected with the bacteria only
eighty-nine will develop an active form of the illness. The
Government stressed that detection of dormant MBT cannot be made
through ordinary radiological methods of screening and a period of
several years may pass between the date when a person contracts the
illness and the date when the illness fully develops. They drew the
Court’s attention to the fact that modern science did not
clearly identify the factors which led to the reactivation of the
tuberculosis process. It is, however, established that persons with a
weak immune system are prone to the infection. Hereditary factors
should also be taken into account. The Government disputed the
possibility of detaining individuals suffering from contagious forms
of tuberculosis alongside healthy inmates in Russian detention
facilities. They accepted that in September 2000 during detention in
the correctional colony the applicant had shared a cell with a person
suffering from a non-contagious form of tuberculosis. Therefore, the
applicant’s contact with that person could not have been a
factor in the development of the illness.
Relying
on a copy of the applicant’s medical record, the Government
further submitted that the applicant had been under effective medical
supervision throughout his detention. That supervision involved
regular medical check-ups prior to diagnosis with tuberculosis and a
prompt and effective response to any health grievances the applicant
had, as well as effective medical treatment to the point of clinical
cure after the illness revealed itself. The treatment the applicant
had received complied with the requirements laid down by Russian law
and international medical standards.
The
Government concluded by arguing that the applicant had made it
impossible for the Russian authorities to provide him with the
medical services he required, as since September 2004 he had
exhibited a negative attitude towards any medical procedures or
treatment offered by the authorities. Relying on the applicant’s
medical history and written statements by members of the colony
medical staff, the Government stressed that on at least twenty-five
occasions between September 2004 and December 2007 the applicant had
refused to submit to medical observations and testing and had not
taken seasonal prophylactic treatment. That behaviour led to a court
decision authorising the applicant’s placement, against his
will, in a tuberculosis hospital in an attempt to establish whether
he had suffered a relapse and presented a danger to other inmates and
warders.
The
applicant averred that he had not been suffering from tuberculosis
before his arrest in February 1997 and that he had acquired his
illness in detention. He stressed that the first eight fluorography
tests performed in facility no. 1 and correctional colony no. 2 did
not show any symptoms of tuberculosis. It was more than four years
after his arrest that his illness was discovered. The applicant
insisted that the Government had provided no evidence in support of
their assertion that he had already been infected with MBT before his
arrest or, for that matter, that he had received the necessary
medical assistance in detention. Relying on statements by his inmates
made in open court within the tort proceedings, he argued that it was
more than probable that his detention alongside inmates suffering
from TB was the cause of his illness.
The
applicant continued by arguing that the authorities’ reaction
to his health complaints had been belated and inadequate. In
particular, it was almost two months after the infection had revealed
itself that he had been admitted to hospital for treatment. The
medical services rendered to the applicant had had a large number of
defects. The treatment had been sporadic and incomplete. A serious
deterioration of his health in March 2004 resulting in his suffering
a spontaneous pneumothorax had been a firm evidence of inadequate
quality of the medical services. The applicant further disputed the
Government’s assertion that he had refused to cooperate with
the authorities. He explained that his refusals to submit to medical
observations and testing in the correctional colony had pursued the
single purpose of forcing the colony administration to transfer him
to a “proper” medical establishment. His behaviour had
been a mere attempt to obtain adequate and effective medical
services. In the applicant’s opinion, it was indisputable that
he wanted to become healthy but that aim was impossible to achieve in
a prison hospital.
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 44 above). The Court insists that, in
particular, 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 v.
Ukraine, no. 72286/01, §§ 104-106, 28 March 2006;
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). However, 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 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).
Application of the above principles to the present
case
Turning
to the circumstances of the present case, the Court observes that
following a fluorography test on 30 October 2001, more than four
years after the arrest in February 1997, the applicant was diagnosed
as having tuberculosis, which, according to him, he had not suffered
from prior to his arrest. In fact, the medical certificates submitted
by the parties show that he had no history of tuberculosis before his
placement in detention facility no. 1 in Oryol. Likewise, no
symptoms of tuberculosis were discovered in the period from 25
February 1997, when the applicant underwent his first fluorography
exam in detention, to 30 October 2001, when the disease was
diagnosed. The eight fluorography tests performed during that period
revealed no signs of infection.
In this respect, the Court is mindful of the
Government’s opinion that Mycobacterium tuberculosis, also
known as Koch’s bacillus, may lie dormant in the body for some
time without exhibiting any clinical signs of the illness. At the
same time, for the Government to effectively argue that the applicant
was infected with Koch’s bacillus even before his arrest, it
would have been necessary for the authorities to perform on the
applicant, upon his admission to the detention facility and in
addition to a fluorography examination, the Mantoux test or a special
tuberculosis blood test which would have indicated the presence of
the latent infection. However, as follows from the parties’
submissions, apart from fluorography examinations, the Russian
penitentiary institutions did not employ any other methods to check
for TB at the moment of detainees’ admission to detention
facilities. It is therefore possible to conclude that the applicant
was never exposed to the infection prior to his arrest and that he
only contracted tuberculosis in detention, particularly taking into
account that in October 1998 he had been placed in a cell with an
individual suffering from the contagious form of tuberculosis (see
paragraph 10 above). In this respect, the Court attributes particular
weight to the conclusion recorded in the applicant’s medical
history and finding the roots of the applicant’s tuberculosis
in his detention with the sick inmate (ibid). The Court also does not
lose sight of the statistical estimations that place Russia among one
of the twenty-two highest-burden countries for tuberculosis in the
world, recording a drastic increase in the incidence of tuberculosis
in the 1990s, with some reports indicating that TB is many times more
prevalent in Russian prisons than in civilian life (see paragraph 49
above). With all these considerations in mind and also adding to them
the fact that the first eight fluorography tests performed between
the applicant’s arrest and October 2001 showed no pathology in
the applicant’s lungs, the Court considers it most probable
that the applicant contracted tuberculosis in detention facility no.
1 (see Staykov v. Bulgaria, no. 49438/99, § 81, 12
October 2006; Yakovenko v. Ukraine, no. 15825/06, §§
28 and 95, 25 October 2007; Hummatov, cited above, §§
108 and 111; and Ghavtadz, v. Georgia, no. 23204/07,
§ 86, 3 March 2009). In these circumstances, the Court
does not consider it necessary to establish the veracity of the
applicant’s argument regarding another alleged instance of his
detention with an inmate with TB in September 2000 (see paragraph 11
above).
While finding it particularly disturbing that the
applicant’s infection with tuberculosis occurred in a
penitentiary institution within the State’s control, the Court
reiterates 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
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.). Absent or inadequate treatment for
tuberculosis, particularly when the disease has been contracted in
detention, is most certainly a subject of the Court’s concern.
It is therefore bound to assess the quality of medical services the
applicant was provided with in the present case and to determine
whether he was deprived of adequate medical assistance as he claims,
and if so whether this amounted to inhuman and degrading treatment
contrary to Article 3 of the Convention (see Sarban v. Moldova,
no. 3456/05, § 78, 4 October 2005).
In
this respect, the Court reiterates the Government’s description
of the applicant’s attitude towards the treatment and medical
assistance afforded to him in detention. In particular, they argued
that after September 2004 the applicant had refused to submit to
medical procedures, including X-ray examinations and clinical tests,
and had declined prophylactic treatment for his illness. Given the
fact that the applicant did not dispute his refusal to follow medical
recommendations of the detention authorities, albeit for quite
different reasons than those implied by the Government, the Court
will assess the quality of the medical care during the two periods of
the applicant’s detention, accepting September 2004 as the
dividing point.
Medical assistance from October 1998 to September
2004
The
Court reiterates that the applicant opened his line of arguments by
complaining that the authorities’ response to his health
grievances aired already in the end of September 2000 was belated
(see paragraph 11 above) and about delayed diagnosis of the illness.
In this connection, while observing no entries in the applicant’s
medical history recording health complaints before the discovery of
the disease in October 2001, the Court still finds strong evidence
before it in support of the applicant’s claims as to the
belated screening of the illness. In particular, it does not escape
the Court’s attention that almost a year passed between the
chest fluorography examinations in 2000 and 2001 (see paragraph 9
above). The Court is troubled by that delay, given the fact that at
the time the applicant was, most probably, a carrier of the latent
tuberculosis infection following his detention alongside an inmate
ill with active tuberculosis, he was in detention, a recognised
setting for the transmission and development of tuberculosis (see
Ghavtadze, cited above, § 86,
and, most recently, Pakhomov v. Russia, no. 44917/08, 30
September 2009, § 64), and there is no indication that following
his contact with the inmate who was ill the applicant received the
full course of preventive treatment to reduce the risk of the latent
infection progressing to active TB later in his life. The Court
believes that in these circumstances the Russian authorities were
under an obligation to closely monitor the applicant’s health
to be able to respond promptly to any reactivation of the latent
infection, an obligation which they failed to comply with.
The
Court further observes that more than a month passed between the
discovery of the illness during a fluorography examination on
30 October 2001 and the applicant’s admission to the
tuberculosis hospital in facility no. 1 on 7 December 2001. The
Government did not provide any explanation for the delay, nor did it
indicate whether the authorities had ever considered that the delay
in the applicant’s admission to the hospital could have
worsened his untreated condition, as well as made him a source of a
secondary spread of infection throughout the prison population and
facility staff, should the applicant turn out to be sputum smear
positive. Noting that delayed treatment is particularly detrimental
to patients suffering from tuberculosis, the Court also finds it
striking that it was not until 17 December 2001 that the
applicant started receiving antibacterial treatment (see paragraph 13
above). While acknowledging the necessity to perform clinical tests
for proper diagnosis, case definition and choice of standard
treatment regimen, the Court is concerned that the testing delayed
the initiation of the applicant’s treatment. It is therefore
not convinced that the authorities acted promptly and diligently in
identifying the illness and initiating effective therapy, the key
measures in the modern strategy of tuberculosis control and
treatment.
The
Court reiterates that the applicant remained in the tuberculosis
hospital until 26 June 2002. Although he did not make any complaints
pertaining to the quality of the medical services rendered to him in
the hospital, the Court still considers it
necessary to emphasise that the quality of the hospital care
following the initiation of the anti-tuberculosis therapy on
17 December 2001 appears to be adequate. In particular, the
evidence placed before the Court shows that, 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 the WHO, 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 for 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 authorities also
effectively implemented the doctors’ recommendations in respect
of a special dietary ration necessary for the applicant to improve
his health (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 to by
doctors, that his complaints were heard and that he was prescribed a
trial of anti-tuberculosis medication, 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 treatment regimen, as required by the DOTS
strategy. The authorities’ actions guaranteed the applicant’s
adherence to the treatment and compliance with the prescribed
regimen, this being a key factor in the treatment’s success.
The
applicant’s medical history containing his diagnosis following
the completion of the treatment in the tuberculosis hospital in the
summer of 2002 as “focal tuberculosis of the left lung in the
resolution phase” showed positive dynamics in the applicant’s
treatment, meaning that he was recovering. The applicant was released
from the hospital to correctional colony no. 2 with a recommendation
to continue treatment on an HE regimen. The medical records indicate
that the applicant had been attended to a number of times throughout
his detention in the colony in 2002 and 2003 and had been prescribed
tests and medication. However, the same records show that the
applicant’s treatment in the colony was unregulated and
erratic. In particular, there is no evidence that the hospital’s
recommendation to continue treatment with isoniazid and ethmbutol was
followed through. In fact, it was not until March 2003 that the
applicant finally gained access to treatment with
anti-bacteriological drugs (see paragraph 17 above). It also does not
appear that the applicant was attended by doctors on a regular or
systematic basis. The Court is mindful that the first examination of
the applicant was performed by the colony doctor on 9 October
2002, more than three months after the applicant’s return to
the correctional colony. It also does not lose sight of the fact that
the colony authorities regularly delayed quarterly X-ray examination
and clinical testing of the applicant. Given that the above tests and
examinations were essential for effective monitoring of the
applicant’s condition and timely diagnosis of possible
reappearance of symptoms of TB, it is regrettable that they were
performed haphazardly. In addition, the Court notes the authorities’
inert response to the applicant’s health complaints in January
2003 and discovery of certain changes in his left lung during an
X-ray examination not long after the complaints had been raised. In
the light of these considerations the Court does not deem such
medical attention to be adequate and reasonable, given the condition
from which the applicant was suffering (see, for similar reasoning,
Hummatov, cited above, §§ 114-115).
Further
developments in the applicant’s case give even stronger support
to the Court’s finding of inadequate medical assistance in the
colony. In this respect, the Court is particularly mindful of the
fact that only days after a special tuberculosis medical panel had,
without observing the applicant in person or hearing his complaints,
declared him “clinically cured” of tuberculosis (see
paragraphs 18 and 19 above), the applicant suffered a spontaneous
pneumothorax of the left lung. Furthermore, the authorities’
reaction to this situation gives rise to criticism. In particular,
almost a month passed between the applicant complaining of a
deterioration of his health and an X-ray exam revealing a
pneumothorax. Despite the applicant’s acute condition requiring
immediate medical assistance, the colony administration delayed his
transfer to the tuberculosis hospital for four days. The applicant’s
further transfer to the surgical department of the Oryol Regional
Tuberculosis Hospital resulted in another two-day delay before he
started receiving treatment. The Court is concerned that the
authorities’ failure to promptly and effectively address the
applicant’s situation could have contributed to a rapid
deterioration of his health and resulted in his being exposed to
additional suffering and distress concomitant to his medical
condition.
Finally,
the Court reiterates that the applicant’s release from the
Oryol Regional Tuberculosis Hospital was accompanied by an important
recommendation to subject him to a two-month chemotherapy regimen
with four anti-tuberculosis drugs. Being aware that regular and
complete medication intake gives individual TB patients the best
chance of cure, the Court finds it disturbing that, having commenced
on 14 April 2004, the treatment was stopped less than a month later,
on 6 May 2004. The applicant’s medical records furnish no
explanation for the interruption of his treatment. Given the
seriousness of the possible negative effects of interruption of
treatment for the applicant, the Court notes that there is no
indication that the authorities have ever considered whether the
applicant should return to the prescribed treatment or whether that
instance of incomplete medication necessitated additional caution and
probably additional treatment for the applicant.
To
sum up, the evidence put before the Court shows that the authorities
failed to promptly diagnose the applicant with tuberculosis and
delayed the initiation of effective therapy. It further considers
that during the period under examination the applicant did not
receive comprehensive, effective and transparent medical assistance
in respect of his tuberculosis during detention in correctional
colony no. 2. In addition the Court attributes particular weight to
the fact that the applicant’s state of health suddenly and
seriously deteriorated in March 2004, leading to his requiring
surgery. The Court believes that, for lack of adequate medical
treatment, the applicant was exposed to prolonged mental and physical
suffering diminishing his human dignity. The authorities’
failure to provide the applicant with the requisite medical care
amounted to inhuman and degrading treatment within the meaning of
Article 3 of the Convention.
Accordingly,
there has been a violation of Article 3 of the Convention on account
of the authorities’ failure to duly diagnose the applicant with
tuberculosis and comply with their responsibility to ensure adequate
medical assistance to him during his detention in the correctional
colony from October 1998 to September 2004.
Medical assistance from September 2004
As
shown by the applicant’s medical history and the parties’
submissions, after 1 September 2004 the applicant persistently
refused to undergo seasonal prophylactic treatment against
tuberculosis and to submit to fluorography examinations and clinical
tests within the schedule developed by the attending tuberculosis
specialists. In his observations to the Court the applicant explained
his decision by his general dissatisfaction with the quality of the
medical assistance afforded to him in detention and his wish to be
treated by independent medical specialists.
The Court observes that each time the authorities encountered the
applicant’s refusals to cooperate and his resistance to medical
supervision and treatment they took steps to ensure that the
applicant’s decision was well informed and that he had complete
understanding of the consequences of his actions. It appears that the
authorities took care to evaluate the refusals and considered
individually each refusal of treatment on the applicant’s part
to determine a proper response and, if possible, to adjust to the
applicant’s demands. 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 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 discussions,
as well as any limits or conditions that the applicant set on a
refusal, were clearly documented in his medical records. Despite the
applicant’s consistent and occasionally aggressive refusals to
comply with medical recommendations, the authorities did not
interpret such behaviour as firm and complete refusal of other
medical interventions, and did not abandon their attempts to comply
with the schedule of medical procedures and treatment, even inviting
representatives of the supervising State body and human rights
organisations in an attempt to persuade the applicant not to refuse
medical care (see paragraphs 22 and 26 above). The authorities’
openness to dialogue with the applicant is also confirmed by their
offers to the applicant of alternative medical facilities for the
purpose of medical examinations. However, even when the examinations
were performed in full compliance with the applicant’s demands
and at a hospital of his choice, he still refused to follow the
doctors’ instructions in their entirety.
The
Court is of the opinion that, in the absence of any evidence that the
applicant’s refusals were the result of coercion or
manipulation by outsiders or of his insufficient knowledge of the
risks faced, as well as in the absence of any indication that the
progress of his illness was such as to endanger himself or others,
the authorities had no choice ultimately but to accept the
applicant’s decision to decline medical services. Patients,
such as the applicant, have the responsibility to communicate and
cooperate with health authorities, to follow treatment and to
contribute to community health. The Court does not lose sight of the
fact that the applicant’s refusals to undergo treatment or
medical examinations were occasionally linked to his requests for
those procedures to be performed in a particular medical
establishment. In this respect, the Court would like to reiterate its
constant jurisprudence according to which a State has a sufficient
margin of discretion in defining the manner in which it fulfils its
obligation to provide detainees with the requisite medical
assistance, inter alia, by choosing an appropriate medical
facility, taking into account “the practical demands of
imprisonment” as long as the standard of chosen care is
“compatible with the human dignity” of a detainee (see
Aleksanyan, cited above, § 140). There is no indication
in the file that the authorities’ choice of medical facility
for the applicant was incompatible with the required standard of
care.
Having
regard to the above findings, the Court is unable to conclude that
the applicant was deprived of medical assistance in respect of his
tuberculosis in the period after September 2004. In reaching this
conclusion the Court also does not lose sight of the fact that the
occasional medical examinations to which the applicant did consent
did not reveal any deterioration of his health during the period
under examination. Furthermore, the applicant, who is no longer
detained, did not provide any evidence in support of his claim that
his condition had worsened. Accordingly, there has been no violation
of Article 3 of the Convention on account of the alleged failure to
provide him with requisite medical care after September 2004.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 70,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government averred that the applicant had failed to submit any proof
that the damage had in fact been incurred. They further noted that
the requested sum was in any case excessive.
The
Court reiterates, firstly, that the applicant cannot be required to
furnish any proof of the non-pecuniary damage he sustained (see
Gridin v. Russia, no. 4171/04, § 20, 1 June
2006). It further notes that it has found a serious violation of the
Convention in the present case. In these circumstances the Court
considers that the applicant’s suffering and frustration caused
by the inhuman conditions of his detention and the fact that he did
not receive adequate medical assistance in detention, cannot be
compensated for by a mere finding of a violation. However, the sum
claimed by the applicant appears to be excessive. Making its
assessment on an equitable basis, it awards the applicant EUR 18,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the
applicant’s belated diagnosis with tuberculosis and allegedly
inadequate medical care during his imprisonment in the correctional
colony admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
3 of the Convention on account of the authorities’ failure to
duly diagnose the applicant with tuberculosis and comply with their
responsibility to ensure adequate medical assistance for him during
his detention in the correctional colony before 1 September 2004;
Holds that there has been no violation of
Article 3 of the Convention on account of the quality of the medical
care afforded to the applicant in detention after 1 September 2004;
Holds
(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 18,000
(eighteen thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
the settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 5 April 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
