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Cite as: [2012] ECHR 625

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FIRST SECTION

CASE OF SHCHEBETOV v. RUSSIA

(Application no. 21731/02)

JUDGMENT

STRASBOURG

10 April 2012

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 Shchebetov v. Russia,

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

Nina Vajić, President,
Anatoly Kovler,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 20 March 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 21731/02) 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 Anatoliy Dmitriyevich Shchebetov (“the applicant”), on 29 April 2002.

The applicant was represented by Ms S. Davydova, a lawyer with the Centre of Assistance to International Protection in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

The applicant alleged, in particular, that he had contracted HIV and tuberculosis in custody, that he had been denied adequate medical assistance, that he had had no effective remedy in respect of his complaints relating to the state of his health, and that his correspondence had been censored and delayed.

On 2 September 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility.

The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government’s objection, the Court dismisses it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1972 and lived until his arrest in the town of Yakutsk.

A. Criminal proceedings against the applicant

According to the applicant, in June 1997 he was arrested, beaten up by the police and released several days later. In September 1997 he was again arrested and charged with theft and robbery. On 20 February 1998 the Yakutsk Town Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. The applicant was conditionally released on 1 June 2004, having served two-thirds of his sentence. However, two and a half months later he was arrested again on suspicion of aggravated robbery. By a judgment of 8 April 2005 of the Yakutsk Town Court he was found guilty as charged and sentenced to nine years’ imprisonment, to be served in correctional colony no. 7.

B. Applicant’s health

1. Tuberculosis

(a) Infection with tuberculosis and treatment

On 1 October 1997 the applicant was admitted to temporary detention facility no. IZ-14/1 in Yakutsk. According to the Government, who relied on a medical record drawn up by the head of the facility on 14 October 2005, together with the applicant’s medical history, the applicant was examined by the prison doctor on 2 October 1997. In addition, the necessary medical tests were performed, in particular blood tests for HIV and syphilis, which showed no presence of infection. A chest X-ray examination did not reveal any problems with the applicant’s lungs. Having been found to be in good health, he was placed in cell no. 1 with other healthy inmates. According to the Government, inmates suffering from tuberculosis were detained in a separate wing of the detention facility.

The next chest X-ray examination, on 30 April 1998, showed a low intensity focal shade on the upper lobe of the applicant’s lung. On this basis he was diagnosed with focal tuberculosis. Additional examinations were recommended.

On 15 May 1998 a prison tuberculosis specialist examined the applicant and prescribed treatment. It follows from the medical record that it was not until 29 July 1998 that the applicant was admitted to the tuberculosis ward of the Sakha (Yakutiya) Republic prison hospital in correctional colony no. 7 (hereinafter “the colony hospital”), the reason being that his transfer to the hospital could only be effected after his conviction became final. The applicant was diagnosed with focal tuberculosis of the right lung in the infiltration stage and post-traumatic encephalopathy. He was released from the hospital on 28 October 1998 after an intensive course of anti-tuberculosis treatment with the recommendation that he continue with the drug therapy. It appears from the documents submitted to the Court that the recommendation was fully complied with.

The applicant was re-admitted to the colony hospital on six occasions – from 10 to 31 March 1999, from 12 May to 26 July 2000, from 6 March to 1 June 2001, from 13 December 2001 to 23 January 2002, from 28 November to 4 December 2002, and from 25 March to 5 May 2004 – where he was placed on an antibacterial chemotherapy regimen. Relying on the applicant’s medical record, the Government stressed that after continuous tuberculosis treatment and clinical testing, on 23 July 2000 the applicant was diagnosed with infiltrative tuberculosis of the upper lobe of the right lung in the resolution stage and assessed as requiring regular medical check-ups. The results of microbiological tests on bodily fluids performed in 1999 and 2000 identified no presence of mycobacterium tuberculosis. A chest X-ray examination carried out on 19 September 2001 revealed isolated small dense nidi on the upper lobe of the applicant’s right lung, accompanied by restricted pneumosclerosis. On 13 December 2001, following a medical examination by the head of the in-patient department of the Yakutsk Town Medical Institute for Scientific Research, the applicant was assigned for less intensive medical supervision, with the diagnosis of focal pulmonary tuberculosis at the consolidation stage. The applicant no longer required active clinical assessment and was to receive prophylactic treatment to prevent a relapse.

The applicant’s medical record contained a number of entries made by tuberculosis specialists recording his negative, and occasionally aggressive, attitude towards the treatment and the medical personnel. The attending doctors spoke with the applicant, explaining the necessity for and content of the treatment and persuading him to continue with it. The medical records provided by the Government further show that he received regular medical attention in respect of his tuberculosis, as well as medical examinations by prison doctors. The tuberculosis specialists consistently found his state of health to be satisfactory following successful courses of anti-relapse therapy. The applicant seemed to agree with the evaluation of his health, and made no complaints to the tuberculosis specialists. His complaints to the prison medical personnel were mostly of a psychological character, including sleep disorder, extreme nervousness, and fears of an unspecified nature. Those grievances were promptly addressed by the prison psychologist or neuropathologist, as well as by the prescription of medicines. The Government also provided the Court with extracts from hospital logs recording the intake of medicines by the applicant, their dosage and frequency.

(b) Tort proceedings

In 2001 the applicant sued the Ministry of Justice and the detention facility, seeking compensation for damage sustained as a result of his being infected with tuberculosis. He claimed that he had contracted tuberculosis in detention, having been placed in a cell with a person infected with the active form of that illness, and that the administration of the detention facility had remained deaf to his complaints about the risk of infection.

The defendants submitted observations in reply. They insisted that there was no evidence that the applicant had contracted tuberculosis in detention because he was a long-term offender and had been in and out of prison since 1989. The applicant’s “way of life” was at the root of his contraction of the illness.

On 12 October 2001 the Yakutsk Town Court dismissed the applicant’s action, holding as follows:

“... the defendants’ fault for the damage to the plaintiff’s health was not proved. Under Article 151 of the Civil Code of the Russian Federation compensation for non pecuniary damage, as a general rule, is awarded in cases when the fault of the defendant is established. The fact of [the applicant] contracting tuberculosis in the detention facility was not proved in open court: the mere fact that he had been detained in the cell with Mr S., who was suffering [from tuberculosis], cannot serve as a ground for finding the defendants responsible for the damage caused and does not prove their fault because this is only the plaintiff’s conjecture. Having regard to the character of the illness, the court considers it possible that the applicant contracted tuberculosis prior to his detention in 1997 because he had, in fact, been detained before and had only been at liberty for several months after his release. As was established in open court, during the plaintiff’s first medical examination on 2 October 1997 no evidence of [tuberculosis] was found, but on 30 April 1998 the results of an X-ray examination were positive: the plaintiff was diagnosed with focal tuberculosis of the right lung and treatment was prescribed, [the treatment] was a success, the plaintiff clinically recovered ...”

On 4 February 2002 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment of 12 October 2001 on appeal, endorsing the Town Court’s findings.

2. HIV

(a) Contraction of HIV

According to the applicant, at the end of December 2001 a colony medical assistant, Mr P., who was drunk, took a blood sample from an HIV positive inmate, Mr G. The assistant used the same syringe to draw the applicant’s blood. The Government disputed the applicant’s version of events. According to them, on 13 December 2001 the applicant and six other inmates were admitted to the colony hospital for clinical assessment and anti-tuberculosis prophylactic treatment. On the following day a colony nurse, Ms Z., took blood samples from all the newcomers, including the applicant. Disposable syringes and needles were used for the blood tests. The results of the tests received on 18 December 2001 showed no presence of HIV antibodies in the blood of any of the inmates. Another colony nurse, Ms S., took a blood sample from inmate G. on 26 December 2001, the day of his arrival at the colony hospital. The Government stressed that the records of the colony hospital personnel showed that medical assistant P. had been on sick leave from 12 to 18 December 2001.

In March 2002 a blood sample was taken from the applicant to be tested for HIV. The results were unclear. Two further blood tests were carried out in July and September 2002. Medical experts also interpreted the results of those two tests as contradictory.

In November 2002, following another blood test, the applicant was diagnosed with HIV. When informing the applicant that he had contracted HIV, the prison doctor explained the results of the test and described various aspects of the infection, its assessment and treatment. It appears from the medical record that the prison psychologist had a number of meetings with the applicant to provide psychological support. The record also reveals that the applicant was subjected to regular clinical assessment to determine whether there was a need to start antiretroviral drug treatment for HIV. Moreover, the doctors constantly reminded the applicant, a heavy smoker and alcohol abuser, of the necessity to adhere to a healthy life style. Following the detection of the virus, the applicant was assigned an enriched food regimen and was prescribed courses of multivitamins and hepatoprotective medicine. On a number of occasions he was admitted to the therapeutic department of the colony hospital for a more in-depth evaluation of his state of health, the stage of the HIV infection and his readiness for drug treatment. However, the medical record shows that in September 2005 the applicant, without any explanation, refused to be transferred to the colony hospital for further medical assessment.

(b) Inquiry into the contraction of HIV

The applicant complained to various domestic officials that he had been infected with HIV.

The doctors of the detention facility filed a report on the state of the applicant’s health. The report stated as follows:

“At the material time [the applicant] is detained in colony no. YaD-40/5. He is given regular medical check-ups in medical department no. IK-5 and he has been diagnosed with: focal tuberculosis of the upper lobe of the right lung in the carnification phase ... Clinical recovery ... HIV-infection (since November 2002).

... [The applicant] was diagnosed and treated in [the colony hospital] from 13 December 2001 to 12 February 2002 ... It is established on the basis of the record of the blood tests that on 14 December 2001 he was tested for HIV infection. The blood test was performed by a colony nurse, Ms Z., ... who used disposable syringes and needles ...”

On 6 January 2003 an investigator of the Yakutsk Town prosecutor’s office refused to open a criminal case, finding that the applicant’s blood sample had not been taken by Mr P. on 14 December 2001.

On 11 April 2003 the Yakutsk Town Court ordered an additional inquiry into the applicant’s complaints. The Town Court’s reasoning was as follows:

“Having studied the case-file materials, [the applicant’s] personal file and his medical record, the court considers that the decision refusing the institution of criminal proceedings is manifestly ill-founded; [the applicant’s] statements about the date when his blood sample was taken and the recording of the date of the test in his medical record are contradictory ...

It is also necessary to take into account the medical history of inmate G ... It is impossible to give a definite answer to the question whether [the applicant’s] blood was taken immediately after the blood had been taken from inmate G. without an examination of [the applicant’s] and inmate G.’s medical records drawn up during their stay in [the colony] hospital ...”

On 25 April 2003 the prosecutor refused to institute criminal proceedings, finding that the applicant had not been subjected to the blood test together with any HIV-positive detainee and that Mr P. had not taken the applicant’s blood sample. The prosecutor’s findings were based on the applicant’s and inmate G.’s medical records, hospital registration logs and statements by the colony medical personnel, including the colony nurses Ms Z. and Ms S., and the colony medical assistant, Mr P. Inmate G. refused to give any statements to the investigators.

The applicant appealed against the decision of 25 April 2003 to a court, arguing that in December 2001 his blood had been taken for testing twice. On the second occasion, at some point after 20 December 2001, assistant P. had taken his blood sample with the same syringe he had used to take a blood sample from inmate G.

On 9 July 2003 the Yakutsk Town Court quashed the decision of 25 April 2003 and ordered that criminal proceedings should be opened, giving the following reasoning:

“On two occasions the investigators refused to institute criminal proceedings because there was no indication of a criminal offence, although [they] did not establish the circumstances and the source of the HIV-infection even though the crime had taken place – [the applicant] had been infected with HIV – in the detention facility”.

The Town Court drew up a list of actions to be taken during the investigation, including a medical expert examination, confrontation interviews between the applicant and staff members of the colony hospital, including Mr P., and inmate G., and verification of Mr P.’s whereabouts.

On 7 August 2003 the Supreme Court of the Sakha (Yakutiya) Republic quashed the decision of 9 July 2003, acting on appeal by prosecution authorities, and remitted the case for fresh examination, finding that it was necessary for the Town Court to hear inmate G. as a witness in order to arrive at the correct decision.

The Yakutsk Town Court summoned witness G. to a hearing on 15 December 2003. He refused to testify, invoking his constitutional right to remain silent. Holding that the applicant’s and inmate G.’s blood samples had been taken by the two colony nurses on two separate occasions and that there was no evidence that Mr P. had performed blood tests, the Town Court dismissed the applicant’s complaint.

On 3 February 2004 the Supreme Court of the Sakha (Yakutiya) Republic upheld the decision of 15 December 2003, endorsing the Town Court’s reasoning.

C. Applicant’s correspondence with the Court

According to the applicant, the administration of the correctional colony had delayed the dispatch of his correspondence to the European Court of Human Rights or had not sent his letters at all. He initially cited a delay in dispatching his letter of 13 November 2003 as an example of the authorities’ failure to duly comply with their obligation not to interfere with his communication with the Court. However, following the notification of the case to the Government, he no longer relied on the incident involving the letter of 13 November 2003 but offered two other examples. In particular, he insisted that on 28 November 2002 he had handed a sealed envelope to the head of the special unit of the correctional colony to be sent to the Court. The envelope contained a letter and a number of documents in support of his complaints. However, the letter was mistakenly sent to the Sakha (Yakutiya) Republic Service for the Execution of Sentences (hereinafter “the Service”). The colony administration notified the applicant of the mistake and assured him that the Service would redirect the letter to the Court. Nevertheless, another mistake occurred and the applicant’s letter was sent to the Russian Ombudsman. The applicant insisted that before dispatching his letter an employee of the Service had seized the attachments to it. The letter was finally sent to the Court on 13 January 2003. The applicant stressed that he had learned that the documents had been seized when by a letter of 16 December 2004 the Court had asked him to submit copies of the two domestic court decisions which he had already enclosed with his letter of 28 November 2002. In addition, the applicant submitted that the prison authorities had delayed the dispatch of his letter of 25 November 2003.

The Government disputed the applicant’s submissions, arguing that according to correspondence logs drawn up in the facilities where the applicant was detained since 2002 and until 2004, he had sent twenty letters to the Court and more than three hundred letters to various Russian officials. Every letter had been successfully dispatched in a sealed envelope, save for the one sent by the applicant to the Court on 13 November 2003. That letter, by mistake, had been sent to the Supreme Court of the Russian Federation as the applicant had indicated that it was to be sent to the “last judicial instance”. On 18 November 2003 the head of the detention facility had asked the President of the Supreme Court to return the applicant’s letter immediately. On the following day the letter had been sent to the Court. The applicant, against his signature, had been informed about the delay in its dispatch. The Government provided the Court with extracts from the correspondence logs of the detention facilities, the letter of the head of the detention facility to the Supreme Court, and the letter to the European Court of Human Rights, showing that the applicant’s letter of 13 November 2003 had been dispatched on 19 November 2003 and that the applicant had been duly informed about the delay.

In December 2005 the applicant complained to the Service about the seizure of the attachments to his letter of 28 November 2002. By a letter of 28 December 2005 the Service informed him that it was no longer possible to establish the fact of the loss of the attachments, let alone which officials could have been responsible.

The applicant lodged a similar complaint with the Sakha (Yakutiya) Republican Prosecutor, seeking institution of criminal proceedings against the employees of the Service. By a decision of 27 March 2006 the request was dismissed, as the prosecutor found that there was no evidence in support of the applicant’s allegations.

Between the date of the applicant’s first letter to the Court in April 2002 and the communication of the case to the Government, the Court received more than twenty-five letters from the applicant, including the twenty letters mentioned by the Government. Almost every letter arrived with voluminous enclosures. On 20 January 2004 it received the applicant’s letter of 13 November 2003. On 10 March 2005 the applicant provided the Court with copies of the two court decisions requested by it on 16 December 2004.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND REPORTS

The relevant provisions of the domestic and international law on health care of detainees, including those suffering from HIV and tuberculosis, are set out in the following judgments: A.B. v. Russia, no. 1439/06, §§ 77-84, 14 October 2010; Yevgeniy Alekseyenko v. Russia, no. 41833/04, §§ 60-66 and 73-80, 27 January 2011; and Pakhomov v. Russia, no. 44917/08, §§ 33-39 and 42-48, 30 September 2011.

THE LAW

I. PRELIMINARY CONSIDERATIONS

The Court observes at the outset that in his application form lodged with the Court in 2003 the applicant complained, inter alia, that he had been infected with HIV by a colony medical assistant, and that the authorities had failed to investigate effectively his complaints about the events in question. In his observations, submitted to the Court in May 2006, the applicant, while maintaining the complaint of HIV transmission through the negligent actions of the medical assistant, gave an alternative version of events. In particular, he complained that the Russian authorities had failed to safeguard his life and health in a situation where they were aware that he used drugs and could acquire the HIV infection while exchanging used syringes with other inmates. The applicant insisted that the colony administration had failed “to exercise effective control over inmates and prevent drug use” in the facility.

In this connection, the Court reiterates that it has jurisdiction to review the circumstances complained of by an applicant in the light of the entirety of the Convention’s requirements. In the performance of this task, the Court is free to attribute to the facts of the case, as established on the evidence before it, a characterisation in law different from that given by the applicant or, if need be, to view the facts in a different manner. Furthermore, the Court has to take into account not only the original application but also the additional documents intended to complete it by eliminating initial omissions or obscurities (see Ringeisen v. Austria, 16 July 1971, § 98, Series A no. 13, as compared with § 79 and §§ 96-97 of that judgment).

Turning to the present case, the Court observes that the new complaint pertaining to the HIV transmission was submitted after notice of the initial application had been given to the Government on 2 September 2005. In the Court’s view, the new complaint raised under Article 2 of the Convention is not simply an elaboration of the original complaints lodged with the Court more than three years earlier, on which the parties have already commented. The Court therefore limits its examination to the complaint about the contraction of HIV through a contaminated syringe (see Nuray ÿen v. Turkey (no. 2), 30 March 2004, no. 25354/94, § 200; Melnik v. Ukraine, no. 72286/01, §§ 61-63, 28 March 2006; Kravchenko v. Russia, no. 34615/02, §§ 26-28, 2 April 2009; and Isayev v. Russia, no. 20756/04, §§ 81-83, 22 October 2009).

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S CONTRACTION OF HIV

The applicant complained under Articles 2, 3 and 13 of the Convention that he had been infected with HIV through a blood test in the hospital of the correctional colony where he was detained and that the authorities had failed to carry out an effective investigation into the incident. The Court will examine the present complaint under Article 2 of the Convention (see Colak and Tsakiridis v. Germany, nos. 77144/01 and 35493/05, § 29, 5 March 2009, and Oyal v. Turkey, no. 4864/05, §§ 51-57, 23 March 2010). Article 2, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. ...”

A. The parties’ submissions

Referring to the results of the prosecution inquiry, the Government insisted that the applicant’s allegations about having contracted HIV through a blood test in the colony hospital were not true. They pointed to the absence of any evidence that the applicant had ever crossed paths with the HIV-positive inmate, Mr G. The Government stressed that the two inmates had arrived at the colony hospital on different dates, different colony nurses had taken their blood samples, and the two inmates had never met during any other medical procedure. Furthermore, colony medical assistant P. had never taken a blood sample from the applicant. Relying on a certificate issued by the head of the Sakha (Yakutiya) Republican Department of Execution of Sentences, the Government indicated that the applicant, a “latent drug addict”, could have contracted the virus through a dirty syringe while injecting a drug or any other medicine or could have been infected “while maintaining relations” with an HIV-positive inmate, Mr A. In their closing argument, the Government assured the Court that the internal investigation into the cause of the applicant’s HIV infection had been conducted promptly and effectively.

The applicant insisted that the State should bear responsibility for his infection with HIV through a syringe which had previously been used to draw blood from an HIV-positive inmate.

B. The Court’s assessment

1. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002 II).

These principles also apply in the sphere of detention. Persons in custody are in a particularly vulnerable position and the authorities are under an obligation to account for their treatment. The Convention requires the State to protect the health and physical well-being of persons deprived of their liberty, for example by adopting appropriate measures for the protection of their lives and providing them with the requisite medical assistance (see, inter alia, Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001 III; Mouisel v. France, no.67263/01, § 40, ECHR 2002 IX; and McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003-V). The Court also reiterates that where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons under their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

Finally, the Court observes that the aforementioned positive obligations also require an effective independent judicial system to be set up so that the infringement of the right to life or to personal integrity can be established and those responsible made accountable (see, for instance, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I). The Court further reiterates that even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I), the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. Accordingly, the competent authorities must act with exemplary diligence and promptness, and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see Kats and Others v. Ukraine, no. 29971/04, § 116, 18 December 2008).

(b) Application of the above principles to the present case

(i) Alleged reckless infection with HIV: establishment of the facts

The Court observes that in November 2002, following a series of unclear or contradictory test results, the applicant was diagnosed with HIV (see paragraph 19 above). While there was no disagreement between the parties that the infection had been acquired in detention, they disputed the exact way in which the virus had been transmitted. The Government indicated two possible routes for the HIV transmission: the applicant’s “relations” with an HIV-positive inmate, and his sharing of contaminated syringes to inject drugs. The applicant insisted that the illness was the result of the negligent actions by colony medical assistant P. who, being in a state of alcohol intoxication, had drawn the applicant’s blood with a syringe previously used to take a blood sample from an HIV-positive inmate, Mr G.

The Court, firstly, notes that, having investigated the applicant’s complaint of reckless actions by medical assistant P., the domestic authorities concluded that Mr P. had not taken the applicant’s blood sample and that there was no evidence that the applicant had attended any medical procedure after or together with inmate G. At the same time, it does not escape the Court’s attention that, having dismissed the applicant’s version of events, the authorities did not attempt to identify the exact way in which the applicant’s infection had been acquired. Neither the applicant’s medical records nor any other documents submitted by the parties contained any reference to a history of intravenous drug use by the applicant. Similarly, there was no evidence that there had been sexual contact between the applicant and other inmates. The investigating or judicial authorities did not make any findings in support of the Government’s view that the above mentioned two routes were ways in which the infection could have been transmitted. In these circumstances, the Court entertains doubts as to whether the authorities can be said to have provided a satisfactory and convincing explanation of the way in which the applicant was infected with the HIV virus which put his life in danger.

While noting the Government’s failure to corroborate their allegations with any evidence, the Court is also mindful that the applicant’s version of events was unreliable and inconsistent.

Accordingly, in a situation where the materials in the case file do not provide a sufficient evidential basis to enable the Court to find “beyond reasonable doubt” that the Russian authorities were responsible for the applicant’s contraction of the HIV infection, the Court must conclude that there has been no violation of Article 2 of the Convention on account of the authorities’ alleged failure to protect the applicant’s right to life.

(ii) Alleged inadequacy of the investigation

The Court once again reiterates that where lives have been lost or seriously endangered in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004-XII).

Turning to the circumstances of the present case, the Court, in the light of the above principles, finds that a procedural obligation arose under Article 2 of the Convention to investigate the circumstances in which the applicant had contracted the HIV infection.

The Court has held on numerous occasions that an obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the applicant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. Thus, the investigation must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, among many authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports 1998-VIII, and Mikheyev v. Russia, no. 77617/01, §§ 107 et seq., 26 January 2006).

In this connection, the Court notes that the prosecuting authorities which were made aware of the applicant’s complaint carried out a preliminary inquiry which did not result in criminal proceedings (see paragraphs 22-29 above). In the Court’s opinion, the issue is consequently not so much whether there was an investigation, since the parties did not dispute that there had been one, but whether it was conducted diligently, whether the authorities were determined to establish the facts of the case and, accordingly, whether the investigation was “effective”.

The Court will therefore first assess the promptness of the prosecutor’s investigation, viewed as a gauge of the authorities’ determination to identify and, if need be, prosecute those responsible for the applicant’s ill-treatment (see Selmouni v. France [GC], no. 25803/94, §§ 78 and 79, ECHR 1999-V). In the present case, the Court is mindful of the fact that the prosecutor’s office promptly opened its investigation into the alleged infection with the HIV virus, with a little over a month passing between the applicant’s diagnosis with HIV in November 2002 and the first investigator’s decision of 6 January 2003 refusing the institution of criminal proceedings (see paragraphs 19 and 22 above). Following the Yakutsk Town Court’s order for an additional inquiry on 11 April 2003, the prosecutor initiated further investigations. They included the medical records of the applicant and inmate G., hospital registration logs and questioning of the colony medical personnel, including the nurses Ms Z. and Ms S. as well as the medical assistant, Mr P. Inmate G. refused to give any statements to the investigators. The investigations were completed already on 25 April 2003, when the prosecutor refused to institute criminal proceedings (see paragraphs 22-24 above).

On 9 July 2003 the Town Court granted the applicant’s complaint and quashed the prosecutor’s decision not to institute criminal proceedings, listing further investigations to be undertaken by the investigators. However, this list was not accepted by the Supreme Court, who directed the Town Court to hear inmate G. before deciding the matter. As Mr G. refused to testify, the Town Court assessed the evidence which was available and decided on 15 December 2003 not to grant the applicant’s complaint. That decision was upheld by the Supreme Court on 3 February 2004 (see paragraphs 25-29 above.)

In the Court’s view, the investigating authorities made diligent efforts to establish the circumstances of the events. In particular, the Court observes that they effectively responded to the criticism laid down by the Yakutsk Town Court in its decision on 11 April 2003, having re-examined the applicant’s medical history and having studied the hospital registration logs and inmate G.’s medical records. The investigators also interviewed the witnesses who could have shed light on the events, including the colony nurses Ms Z. and Ms S., as well as the applicant and Mr P.

The Court is also of the opinion that the facts of the case do not reveal that the authorities did not thoroughly evaluate the medical evidence before them, attempting to draw conclusions from it without accepting too readily any version of events. Furthermore, the Court cannot overlook the fact that the domestic courts actively responded to the applicant’s grievances, directing the course of the investigation. However, with inmate G. refusing to testify, the courts’ task of establishing the facts was a complicated one. In these circumstances and given the absence of any evidence, save for the applicant’s statements, that Mr P. had ever taken a sample of the applicant’s blood, their conclusion appears well-founded.

The Court therefore considers that the domestic investigation was effective for the purposes of Article 2 of the Convention. There has accordingly been no violation of the procedural obligation under that Convention provision.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACOUNT OF INADEQUATE MEDICAL ASSISTANCE

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 failed to provide him with adequate medical assistance. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties’ submissions

The Government firstly argued that it was impossible to establish “beyond reasonable doubt” that the applicant had contracted tuberculosis in detention. They reasoned that a period of several months can pass between the date when a person contracts the illness and the date when the illness fully develops. The Government did not accept that the applicant had ever shared a cell with a person suffering from a contagious form of tuberculosis.

The possibility of individuals suffering from contagious forms of tuberculosis being detained alongside healthy inmates in Russian detention facilities was fully excluded. They stressed that the applicant could have had contact with a person with an active form of the illness when he had stayed at his sister’s flat between his release from detention in 1996 and his new arrest in 1997.

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 had involved regular medical check-ups prior to his diagnosis with tuberculosis and HIV, and a prompt and effective response to any health grievances the applicant had, as well as effective medical treatment resulting in his clinical cure after the tuberculosis had revealed itself. The medical personnel of the detention facilities had closely monitored the applicant after it had been discovered that he had contracted HIV in order to determine the perfect timing to initiate antiretroviral therapy. The treatment the applicant had received complied with the requirements laid down by Russian law and with international medical standards.

The applicant averred that he had not been suffering from tuberculosis before his arrest in September 1997 and that he had acquired his illness in detention. He stressed that he had never stayed with his sister during his short term of liberty between his release in 1996 and his arrest in 1997. The first fluorography test performed upon his admission to facility no. IZ-14/1 had not shown any symptoms of tuberculosis. It was more than six months after his arrest that his illness had been discovered. The applicant insisted that the Government had provided no evidence in support of their assertion that he had already been infected with mycobacterium tuberculosis before his arrest or, for that matter, that he had received the necessary medical assistance in detention. Citing the Yakutsk Town Court’s judgment of 12 October 2001 in which the fact of his detention with an inmate suffering from tuberculosis was confirmed, the applicant argued that it was more than probable that his detention alongside that inmate was the cause of his illness.

Without providing any details, the applicant further argued that the authorities’ reaction to his health complaints had been belated and inadequate. He stressed that regular clinical monitoring and testing, his placement on an enriched food regimen and the administration of multivitamins did not constitute an effective response to his medical condition.

B. The Court’s assessment

(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, however, 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).

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 of deprivation of liberty 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 persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that even where 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, 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 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, cited above, §§ 104-106; Yevgeniy Alekseyenko, cited above, § 100; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; 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, cited above, § 211).

On the whole, the Court reserves a fair degree of flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).

(b) Application of the above principles to the present case

Turning to the circumstances of the present case, the Court observes that following a fluorography test on 30 April 1998, more than six months after his arrest in September 1997, the applicant was diagnosed as having tuberculosis, which, according to him, he had not suffered from prior to his arrest. Indeed, the medical records submitted by the parties show that he had no history of tuberculosis before his placement in detention facility no. IZ 14/1 in Yakutsk. Likewise, no symptoms of tuberculosis were discovered in the period from 2 October 1997, when the applicant underwent his first fluorography exam in detention, to 30 April 1998, when the disease was diagnosed (see paragraph 9 above).

The Court accepts the Government’s argument that the authorities cannot not be held accountable for an applicant contracting tuberculosis in view of the fact 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. In this regard, given the parties’ consent that the contraction of the infection by the applicant took place prior to 5 May 1998, that is the date when the Convention entered into force in respect of Russia, the Court considers that it has no competence ratione temporis to decide whether the applicant contracted tuberculosis in detention and whether the Russian authorities were responsible for the transmission of the infection.

However, the Court reiterates that irrespective of the fact whether or not an applicant became infected while in detention, 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 medical treatment, particularly when the disease has been contracted in detention, is most certainly a subject for 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, cited above, § 78).

The Court observes that the applicant did not indicate any specific omissions on the part of the prison medical personnel which had rendered their services ineffective and inadequate. He limited his submissions to the general grievance that an HIV-positive inmate suffering from tuberculosis should not be treated in the way he had been treated. However, having assessed the evidence, the Court finds the quality of the medical care provided to the applicant to have been adequate.

In particular, the material available to the Court shows that the Russian authorities used all existing means for the correct diagnosis of the applicant’s condition, placed the applicant on an intensive chemotherapy regimen to fight tuberculosis, thoroughly considered the question of initiating antiretroviral therapy for the HIV infection, and, once the tuberculosis process had been arrested, took the necessary steps to prevent a new onset of tuberculosis by, inter alia, prescribing appropriate prophylactic treatment and admitting the applicant to medical institutions for in-depth examinations. The applicant was subjected to regular and systematic clinical assessment and monitoring, which formed part of the comprehensive therapeutic strategy aimed at preventing a relapse. The Court is unable to find any evidence, and the applicant did not argue otherwise, that the tuberculosis specialists’ recommendations as to the frequency of X-ray testing and prophylactic tuberculosis treatment were disregarded by the medical personnel of the facilities where he was detained at the time.

This conclusion is not altered by the fact that a delay of approximately two months occurred between the first examination of the applicant by a tuberculosis specialist on 15 May 1998 when anti-tuberculosis treatment was prescribed and the applicant’s admission to the prison hospital for treatment (see paragraph 10 above). While considering this delay unfortunate, the Court does not find it to be so grave as to negate the effects of the subsequent successful treatment which the applicant received throughout the rest of his detention. The Court’s finding is supported by the fact that in 2001 the applicant was assigned to a significantly lighter regime of medical assessment as he no longer required active clinical supervision. The medical record containing the applicant’s diagnosis of clinical recovery from tuberculosis showed no indication of a relapse at any time during his detention, thus confirming the effectiveness of the medical care he received in the detention facilities.

Furthermore, the Court attributes particular weight to the fact that the facility’s administration not only ensured that the applicant was attended to by doctors, that his complaints were heard, and that he was prescribed courses of anti-tuberculosis medication, but they also created the necessary conditions for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116). The Court notes, in particular, that when the applicant refused to cooperate and resisted treatment, he was offered psychological support and attention and was provided with clear and complete explanations about medical procedures, the desired outcome of the treatment and the negative effects of interrupting the treatment. The authorities’ actions ensured the applicant’s adherence to the treatment and compliance with the prescribed regimen.

The Court also notes that the authorities efficiently addressed any other health grievances that the applicant had. His anti-tuberculosis treatment was adjusted to take account of his concomitant health problems, including his HIV-positive status and psychological issues, as well as his personal preferences as to medical procedures to follow and medicines to take. The authorities efficiently addressed the issue of newly diagnosed HIV in the applicant, providing him with adequate counselling and advice. The applicant’s illnesses were subsequently staged and managed as clinically appropriate. And as already mentioned, the authorities promptly initiated highly active antiretroviral therapy, as well as subsequent clinical monitoring of the development of the infection to appropriately begin the therapy.

To sum up, the Court considers that the domestic authorities afforded the applicant comprehensive, effective and transparent medical assistance throughout the period of his detention falling under the Court’s ratione temporis competence. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

The applicant complained under Articles 8 and 34 of the Convention that the colony administration had interfered with his correspondence with the Court. The Court will examine the present complaint under Article 34 of the Convention, which reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government argued that the applicant’s complaint was inadmissible owing to his failure to raise it before a proper domestic authority and having regard to the particularly insignificant character of the alleged violation. They stressed that the authorities had fully respected the applicant’s right to communicate with the Court. A single and extremely insignificant delay of six days in dispatching the applicant’s letter of 13 November 2003 had resulted from a technical mistake and could not be taken as evidence in support of the applicant’s submissions.

The applicant maintained his complaint, referring to the loss of the attachments to the letter of 28 November 2002 and a delay in dispatching the letter of 25 November 2003.

The Court firstly reiterates its constant case-law according to which a complaint under Article 34 of the Convention does not give rise to any issue of admissibility under the Convention (see Juhas Đurić v. Serbia, no. 48155/06, § 72, 7 June 2011, with further references).

Furthermore, the Court notes that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual to present and pursue a complaint effectively with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002).

It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy (ibid.).

Having examined the parties’ submissions and the material available to it, the Court considers that there is an insufficient factual basis for a conclusion that there has been any unjustified interference by State authorities with the applicant’s exercise of the right of petition in the proceedings before the Court in relation to the present application. Furthermore, the Court is not prepared to interpret the authorities’ honest mistake in dispatching the letter of 13 November 2003, which they promptly and effectively corrected, as evidence of their interference with the applicant’s correspondence with the Court.

Therefore, the Court concludes that the respondent State has complied with its obligations under Article 34 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicant also complained that he did not have an effective domestic remedy for his complaint concerning the contraction of tuberculosis in detention, in breach of Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties’ submissions

The Government argued that the applicant’s complaint was manifestly ill-founded, being linked to the manifestly ill-founded complaint under Article 3 of the Convention. In any event, it had been open to the applicant to lodge a tort action with the Yakutsk Town Court and he had explored that avenue. The fact that the applicant’s action had been unsuccessful did not strip that avenue of its effectiveness.

The applicant maintained his complaint.

B. The Court’s assessment

The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Menteÿ and Others v. Turkey, 28 November 1997, § 89, Reports 1997 VIII).

Turning to the circumstances of the present case, the Court observes that the applicant lodged a tort action against State officials, arguing their liability for damage caused to his health by his contraction of tuberculosis. In his application to the Court the applicant argued that the remedy of a tort action was not sufficiently effective to comply with Article 13 of the Convention, as it did not provide any redress. It is apparent from the foregoing that the Court must examine whether the judicial avenue for obtaining compensation for the damage sustained by the applicant represented an effective, adequate and accessible remedy capable of satisfying the requirements of Article 13 of the Convention.

The Court observes that Russian law undoubtedly afforded the applicant the possibility of bringing tort proceedings against the State. The applicant availed himself of that possibility by seeking compensation for the damage he had sustained on account of his contraction of tuberculosis. The domestic courts at two levels of jurisdiction examined his claims and found them to be manifestly ill-founded in view of the absence of any evidence that the applicant had been infected with tuberculosis through the fault of the authorities. The applicant’s dissatisfaction with the outcome of the proceedings does not in itself demonstrate that a tort action was an ineffective remedy for the purposes of Article 13 (see Murray v. the United Kingdom [GC], 28 October 1994, § 100, Series A no. 300 A, and Buzychkin v. Russia, no. 68337/01, § 74, 14 October 2008).

The Court therefore concludes that the remedy available to the applicant satisfied the conditions laid down in paragraph 89 above. It follows that the complaint under Article 13 is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it must be rejected pursuant to Article 35 § 4.

VI. 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.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the complaint concerning the applicant’s infection with HIV in detention and the authorities’ failure to effectively investigate the incident admissible and the remainder of the application inadmissible;

Holds that there has been no violation of Article 2 of the Convention on account of the applicant’s contraction of the HIV virus in detention;

Holds that there has been no violation of Article 2 on account of the authorities’ failure to carry out a thorough and expeditious investigation into the applicant’s complaint concerning his infection with HIV;

Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

Done in English, and notified in writing on 10 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Nina Vajić
Registrar President