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Cite as: [2012] ECHR 498

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FIRST SECTION

DECISION

Application no. 29687/09
Azamat Rakhmetovich ISMATULLAYEV
against Russia

The European Court of Human Rights (First Section), sitting on 6 March 2012 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 27 April 2009,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Azamat Rakhmetovich Ismatullayev, is a Turkmen national who was born in 1976 and is serving a sentence in a correctional colony in the Saratov Region. The respondent Government are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Criminal proceedings against the applicant and subsequent attempts to reopen the criminal case

On 25 May 2001 the Supreme Court of the Russian Federation, as court of final instance, found the applicant guilty of manslaughter and attempted aggravated murder and sentenced him to fifteen years’ imprisonment.

On 18 January 2007 a deputy prosecutor for St. Petersburg, acting on the applicant’s representative’s request and having considered that a psychiatric forensic examination of the applicant, performed during the criminal proceedings and finding that he did not suffer from any mental illness, could have been erroneous, initiated an inquiry to determine whether there were grounds to reopen the criminal case against the applicant in view of newly discovered evidence. The deputy prosecutor noted that it was necessary to conduct an additional expert examination of the applicant’s psychological state at the time when he committed the crime.

After the additional expert examination had confirmed the findings of the initial examination, on 4 May 2008 the Vyborg District Prosecutor in St. Petersburg closed the proceedings, having found no newly discovered evidence warranting the reopening of the criminal case.

In 2010 the applicant’s representative lodged a complaint with the Vyborgskiy District Court in St. Petersburg, alleging that the investigators had committed a number of procedural violations when they had authorised the psychiatric expert examinations of the applicant during the criminal proceedings against him and in the course of the inquiry in 2007-2008.

On 30 March 2010 the District Court accepted the complaint in part, having confirmed that the investigators had failed to notify the applicant of their decisions authorising the expert examinations. On 24 June 2010 the St. Petersburg City Court quashed that decision and closed the proceedings. Having noted that the applicant’s criminal case had been determined by a final judgment in 2001 and that the inquiry into a possible reopening of the case had been closed in 2008, the City Court held that the complaint was no more than an appeal in disguise by which the applicant had attempted to have matters reviewed which had already been settled by final decisions. On 28 June 2010 the Supreme Court of the Russian Federation examined the applicant’s complaint about the prosecutor’s decision of 4 May 2008 and his request for the reopening of his criminal case. Both the complaint and the request were dismissed on the grounds that there were no procedural defects in the actions of the prosecutors or courts.

2. The applicant’s state of health

According to the applicant, following a complex medical examination including blood tests and an examination by a physician, in December 2007 he was diagnosed with hepatitis C, which was not considered to be acute. The applicant submitted that he had contracted the disease at a dentist’s surgery in the prison hospital. He alleged that he had not suffered from the illness prior to his detention. Relying on copies of letters from the head of the St. Petersburg City Hospital and the acting prosecutor for the Vyborgskiy District, the applicant further argued that his medical file drawn up prior to 2004 had been lost or misplaced.

In addition, he argued that his numerous complaints of the deterioration of his health accompanied by acute pain in the right side of the body, absence of appetite, depression and insomnia and requests for the provision of adequate medical assistance had been left without any response, save for the authorities’ assertions that the treatment for his illness was extremely expensive and the detention facility did not have the funds to purchase the necessary medicines. There is, however, no evidence that the applicant has ever raised those complaints before a prosecutor or a court.

Having relied on voluminous evidence, including the applicant’s medical history, medical certificates, expert reports and registration logs, the Government submitted that on 27 June 2000 the applicant had been admitted to temporary detention facility no. 4 in St. Petersburg. According to the Government, while performing regular blood tests to identify HIV infection and syphilis, as well as X-ray exams to identify cases of tuberculosis, the authorities had not employed routine screening for the presence of hepatitis C virus (“HCV”) upon the placement of detainees in detention facilities. On admission to the facility the applicant had been tested for HIV and syphilis with both tests producing negative results, but no samples had been taken from him for assays meant to detect the specific antibody to hepatitis C virus. The Government insisted that it had not been necessary to establish the applicant’s HCV infection status as there had been no evidence that he had had a history of risk of exposure to the virus and he had had no symptoms of acute or chronic illness. They further pointed out that during the entire period of his detention the applicant had benefited from close medical attention, having received, on a number of occasions, courses of antibacterial treatment in respect of his chronic maxillary sinusitis in a specialised hospital in St. Petersburg and having undergone an operation which had radically improved his condition pertaining to that illness. The applicant had been under regular medical supervision by prison physicians and otolaryngologists. He had been repeatedly screened by tuberculosis specialists, with the tests showing no presence of tuberculosis bacteria. He had also received routine dental treatment. Every health complaint the applicant had raised had been promptly and duly addressed by the medical personnel of the detention facilities. However, the doctors could not, even remotely, have connected any of those complaints to his suffering from hepatitis C until the applicant asked a prison doctor to test his blood for viral hepatitis on 28 October 2010. Although having noted his surprise at the request in the applicant’s medical history, the doctor had granted it. The results of the test performed on 10 November 2010 had showed the presence of antibodies against HCV.

The Government insisted that it was not until 10 November 2010 that the prison doctors had learned of the applicant’s diagnosis. They, however, acknowledged that on 7 November 2007 the applicant had been transferred to the St. Petersburg City Psychiatric Hospital for a psychiatric examination. On admission to the hospital, he had been subjected to a thorough clinical assessment, including blood tests. As a result, he had been diagnosed with chronic hepatitis C in the “dormant stage”. The applicant, however, had withheld that information from the prison authorities and the hospital had not transferred the applicant’s medical records with the results of the blood tests to the applicant’s detention facility.

Following the applicant’s diagnosis in 2010, he had been assigned inpatient clinical monitoring. A number of additional specialised tests performed in November and December 2010 had confirmed the diagnosis of chronic hepatitis C in remission. Examinations by hepatologists and tests performed to evaluate the applicant for liver disease had showed that he did not yet require HCV treatment. At the same time, the prison doctors had attempted to provide the applicant with psychological support, having tried to identify the possible cause of the illness, having explained his future treatment and having counselled him regarding prevention of the spread of the virus to others. The applicant’s complaints in late November 2010 and April 2011 of pain in the right subcostal area and a bitter taste in his mouth had led to his being diagnosed with biliary dyskinesia. The applicant had received the necessary treatment, including with hepatoprotective medicines.

Further relying on various medical documents, copies of licences and so forth, the Government argued that the prison hospital in the correctional colony where the applicant is detained has all necessary medical specialists and equipment for successful medical management of the applicant’s condition. They stressed that the applicant remains under dynamic clinical assessment, including laboratory testing and regular medical examinations, which will allow a decision for the introduction of antiviral therapy, if appropriate, to be promptly taken. However, the most recent medical assessment of the applicant in June 2011 showed no signs of deterioration in the state of his health. The results of the clinical testing had confirmed that the HCV infection is still in remission. The applicant had not made any complaints as to the state of his health.

B. Relevant domestic and international law and reports

The relevant provisions of domestic and international law on health care of detainees and the authorities’ procedural obligation to investigate alleged instances of ill-treatment (criminal offences) in detention facilities are set out in the following judgments: Pakhomov v. Russia, no. 44917/08, 30 September 2011; and Yevgeniy Alekseyenko v. Russia, no. 41833/04, 27 January 2011.

15. The Russian Criminal Code establishes criminal responsibility for the intentional or negligent infliction of serious health damage with negligent conduct being punishable by up to three years of limitation of liberty and intentional actions by up to eight years of imprisonment (Articles 111 and 118). However, the infliction of serious health damage by an official as a result of his or her failure to fulfil professional responsibilities constitutes a separate, aggravated criminal offence attracting an increased penalty, with the possibility of sentencing the defendant to imprisonment coupled with a prohibition on holding an official position or engaging in the practice of certain activities (Article 118 § 2).

COMPLAINTS

The applicant complained under Article 3 of the Convention that he had contracted hepatitis C in detention and had not received the necessary medical assistance although his health had continued deteriorating rapidly.

The applicant complained under Article 6 of the Convention of various procedural violations committed by the prosecution authorities and courts during the criminal proceedings leading to the final judgment of 25 May 2001 and when they had dealt with his case in 2007-2010 during his attempts to reopen the criminal case. He further complained that all of the proceedings had been extremely lengthy.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 ON ACOUNT OF BEING INFECTED WITH HEPATITIS C

The applicant complained that he had contracted the hepatitis C virus (“HCV”) when he had received dental treatment in the prison hospital. 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 argued that the applicant had failed to exhaust domestic remedies, as he had neither complained to the colony administration nor lodged a criminal law complaint or a tort action, alleging his having been infected with the virus during his detention. They further submitted that there was no evidence of his contracting the infection in detention. While not disputing that the applicant had received dental care in the colony, the Government argued that it could not be established “beyond reasonable doubt” that the HCV infection had been transmitted during a medical procedure. They stressed that an assessment of the epidemiological situation in the detention facilities in St. Petersburg had not revealed any cases of HCV transmission to or among inmates. The Government also stressed that the medical procedures performed in Russian penitentiary facilities complied with the highest standards of medical care. It included the use of sterilised or disposable medical equipment to avoid exposure of inmates to infections. The Government concluded by noting that when questioned by the prison doctors on the potential source of the virus, the applicant had not disputed the possibility of HCV transmission through sexual contact with an HCV-infected partner.

The applicant submitted that he had not been infected with HCV prior to his arrest. He argued that immediately after his arrest he had been sent to hospital no. 3 in St. Petersburg, where his blood had been tested for viral hepatitis. The tests had showed that he had been healthy. However, the test records had been lost or misplaced. He further stressed that his having been HIV-negative supported his allegation that he had been infected during a medical procedure in detention and not by way of sexual transmission. In addressing the Government’s objection of non-exhaustion, the applicant noted that his complaint of HCV infection was subordinate to his Article 6 complaints. He had raised the present complaint before the Court in order to obtain priority treatment of his application, the foremost complaint therein being the unfairness of the criminal case against him.

B. The Court’s assessment

While assessing the Government’s argument that the applicant failed to exhaust domestic remedies, the Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to first use the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).