THIRD SECTION

CASE OF KAIMOVA AND OTHERS v. RUSSIA

(Application no. 24132/12)

JUDGMENT

STRASBOURG

21 November 2017

This judgment is final but it may be subject to editorial revision.

In the case of Kaimova and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 31 October 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24132/12) 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 three Russian nationals, Ms Damani Kaimova, Ms Maryam Moldyyevna Kaimova, and Ms Zarina Tamiyevna Maskhurova (“the applicants”) on 11 April 2012.
2.  The applicants were represented by Mr E. Vesselink, Ms V. Kogan and Ms. A. Kushleyko, lawyers from Stichting Russian Justice Initiative and Astreya Legal Assistance Organisation. The Russian Government (“the Government”) were represented Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that post, Mr M. Galperin.
3.  The applicants alleged in particular, that their relative, Mr Moldy Lom-Aliyevich Kaimov (“Mr Kaimov”) had died in detention owing to a lack of adequate medical assistance and that there had been no effective investigation of his death.
4.  On 3 December 2014 the aforementioned complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
6.  Ms Damani Kaimova, Ms Maryam Moldyyevna Kaimova, and Ms Zarina Tamiyevna Maskhurova were born on 16 February 1953, 13 January 2005, and 18 September 1981, respectively. They live in the Chechen Republic. The first applicant is the mother, the second applicant is a daughter, and the third applicant is the widow of the late Mr Kaimov.
Section 1.01	A.  Criminal proceedings against Mr Kaimov
7.  On 23 September 2006 Mr Kaimov was arrested for being a member of an illegal military organisation in the Chechen Republic. He remained in detention throughout the investigation and trial. On 1 November 2006 the Achkhoiy-Martan District Court of the Chechen Republic found him guilty of charges related to the military organisation and illegal acquisition of weapons. He was sentenced to two and a half years’ imprisonment.
8.  In the meantime, he was charged with attempted murder of law‑enforcement officials, with making a homemade explosive, and other offences. He was convicted as charged by the Supreme Court of the Chechen Republic on 28 October 2008 and sentenced to six and a half years’ imprisonment.
Section 1.02	B.  Medical condition of Mr Kaimov and his treatment in detention
9.  Prior to his detention Mr Kaimov had been diagnosed with tuberculosis for which he had been receiving outpatient treatment in a local hospital.
10.  On admission to a remand prison Mr Kaimov informed the custodial authorities of his history of tuberculosis. A chest X-ray in January 2007 examination revealed the signs of that disease. A standard treatment with first-line medication was prescribed.
11.  In early 2009 Mr Kaimov was sent to serve his sentence to the Republic of Tatarstan. In March 2009 he was admitted to prison medical institution no. 1 in Nizhnekamsk, where his tuberculosis was cured as confirmed by a medical board on 7 June 2009.
12.  On 2 October 2009 Mr Kaimov was discharged from the prison medical institution to remand prison no. IZ-16/2 in Kazan. Shortly thereafter his health worsened.
13.  On 28 October 2009 the prison authorities ordered his admission to prison medical institution no. 2 in Kazan (“the prison hospital”) where Mr Kaimov was diagnosed with tuberculosis of the right lung at the stage of tissue destruction. Treatment with second-line drugs was prescribed.
14.  In February and March 2010 doctors noted progression of the disease. At that time Mr Kaimov started coughing up blood. An amended intense treatment brought his condition under control.
15.  On 14 April 2010, in response to Mr Kaimov’s “negligent attitude towards his treatment”, a doctor talked to him about the importance of taking his drugs regularly. On 22 April and 1 May 2010 the doctor had repeated talks with him on the issue.
16.  In late May 2010, the first applicant visited her son. Mr Kaimov was in a poor health. He claimed that no treatment had been given to him and that “the medical staff [had] paid absolutely no attention to his condition”.
17.  On 22 April, 31 May and 8 June 2010 the doctor responsible for Mr Kaimov’s treatment again noted in the medical file that the patient was not taking his drugs as prescribed and insisted that he should follow medical instructions properly. The medical records were not signed by Mr Kaimov.
18.  By mid-June 2010 Mr Kaimov’s condition became serious. He was no longer able to leave his bed.
19.  On 24 June 2010 an inmate of the remand prison allegedly informed the first applicant that her son’s condition had become very serious and that no medical care was being given to him.
20.  Four days later Mr K., a lawyer working with the Russian Justice Initiative, interviewed Mr Kaimov in the prison hospital. He said that he had not received the medicines, as the prison hospital did not have them. The prison hospital’s management refused to accept parcels with drugs for detainees.
21.  Mr Kaimov died of heart failure caused by tuberculosis on 1 July 2010. The first applicant did not allow an autopsy to take place.
Section 1.03	C.  Criminal inquiries into Mr Kaimov’s death
22.  According to the Government, the investigating authorities carried out a criminal inquiry into the circumstances of Mr Kaimov’s death, which ended with a decision of 21 July 2010 not to open a criminal case.
23.  On 22 November 2010 Mr K. asked the head of the Investigative Committee of the Republic of Tatarstan to investigate the circumstances of Mr Kaimov’s death. He pointed out that the detainee had complained of the lack of treatment in detention. A copy of the interview record of 28 June 2010 was attached to the request.
24.  The investigating authorities interviewed Mr K., who confirmed his statements, and Ms I., the head of the tuberculosis unit responsible for Mr Kaimov’s treatment in 2009 and 2010. The doctor stated that the patient had received tuberculosis treatment until late May 2010, when he had refused to take any drugs.
25.  On 6 December 2010, citing statements by Ms I., the investigating authorities concluded that there had been no appearance of negligence on the part of the medical authorities. They decided not to open a criminal case.
26.  Three weeks later a higher-ranking investigator overruled that decision, noting that the investigation had not been thorough, in particular, because no medical documents had been collected.
27.  The investigator again refused to open a criminal case on 5 January 2011. That decision was annulled by the higher-ranking authority on 15 March 2011 for want of necessary investigative measures, in view of the investigator’s failure to rectify the shortcomings already identified in the previous review decisions.
28.  Twelve days after the annulment of his previous decision, the investigator again refused to open a criminal case, having based his new decision on the same evidence and arguments as before.
29.  In the meantime, Mr K. submitted a new criminal complaint to the Central Inter-district Department of the Investigative Committee in the Republic of Tatarstan. The authorities were called on to verify whether the alleged inaction of the medical authorities had amounted to the deprivation of medical care, an offence under the Russian Criminal Code. On 10 May 2011 the case was forwarded to the Promyshlennyiy district police station in Kazan.
30.  A police investigator interviewed a tuberculosis specialist, who had treated Mr Kaimov, and a prison nurse. They unanimously stated that the patient had refused treatment.
31.  On 29 May 2011 the investigator refused to open a criminal case. Relying on the above statements and Mr Kaimov’s medical history, he found that the latter’s death had resulted from his own careless decision in not taking the prescribed drugs, and that the medical authorities had taken all reasonable steps to convince him to re-initiate the treatment.
32.  The first applicant appealed against the decision of 29 May 2011. Her appeal was rejected, in the final instance, by the Supreme Court of the Tatarstan Republic on 11 October 2011. The courts concluded that the investigation into Mr Kaimov’s death had been thorough and comprehensive. The decision refusing the institution of criminal proceedings had been based on the examination of the medical file and statements by a number of witnesses, including the medical personnel of the prison hospital. The courts endorsed the investigator’s conclusion that Mr Kaimov had refused treatment and had not followed the recommendations of the medical personnel. The courts also noted that the first applicant had been aware of Mr Kaimov’s behaviour and had not made any complaints about the quality of the treatment at that time.
33.  Following the communication of the application to the Russian Government, they submitted that on 13 and 26 February 2015 the decisions of 27 March and 29 May 2011, respectively, had been overruled by higher‑ranking officials and additional investigative measures had been ordered. In particular, a medical expert examination was to be performed.
34.  According to the applicants’ correspondence of 3 July 2015, the criminal investigation was pending. There is no further information about the outcome.
Article II.	II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW
35.  The relevant provisions of domestic and international law on the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015).
36.  Rules dealing with a patient’s refusal of medical care are set out in Article 33 of the Russian Health Care Act (Federal law no. 5487-1 of 22 July 1993). As in force at the relevant time, Article 33 provided that a patient or his or her legal representative was entitled to refuse medical intervention or to ask for it to be stopped. In a case of a refusal of medical intervention, a patient or a legal representative was to be informed, in a clear manner, about the possible consequences of such a refusal. The refusal was to be recorded in the person’s medical file; it should contain a list of the possible adverse effects and it should be signed by the patient or patient’s legal representative, and by a doctor.
37.  Orders of the Ministry of Justice of Russia no. 190, and of the Ministry of Health Care and Social Development of Russia no. 640, dated 17 October 2005, set out Rules on the medical care for detainees. According to paragraph 39 of the Rules, the refusal of a suspect, accused, or a convict to undergo a medical examination or treatment should be recorded in the medical file and should be signed by him or her, and by a member of the medical staff. A talk explaining in as understandable a manner as possible the consequences of such a refusal should be carried out. The refusal of a detainee to sign his waiver of treatment should be discussed by medical staff, and then should be recorded in his or her medical file.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
38.  The applicants complained that the authorities had failed to provide Mr Kaimov with the adequate medical care in respect of tuberculosis, and that they had thus been responsible for his suffering and death. The applicants also complained that the investigation into his death had been neither adequate, nor effective.
39.  The Court considers that the above complaints fall to be examined under Article 2 of the Convention, the relevant part of which reads as follows:
“1.  Everyone’s right to life shall be protected by law. ...”
Section 3.01	A.  Submissions by the parties
40.  The Government submitted that the medical authorities had provided Mr Kaimov with the adequate medical care. It had resulted in his recovery from tuberculosis in June 2009. After the relapse of the disease, he had been admitted to an appropriate medical facility fully staffed and equipped for his treatment. The Government submitted diplomas and certificates confirming the qualifications of the doctors involved in Mr Kaimov’s treatment. The Government stated that the deterioration in the patient’s health had been caused by his refusals of treatment in May 2010, which the doctors had had to respect. The Government further argued that the criminal inquiry had satisfied the requirements of Article 2 the Convention. Decisions not to open a criminal case had been overruled in February 2015 and certain additional investigative measures, including medical expert examinations, had been ordered.
41.  The applicants argued that Mr Kaimov had not refused to take the prescribed drugs. The custodial authorities had not provided him with the prescribed medication because they had not had it, and that in any event his treatment had been ineffective. They questioned the qualifications of his doctors, and the credibility of the statements by Ms I. Thus, referring to the documents submitted by the Government, they noted that between 7 April and 3 June 2010 she had attended 288 hours of medical training, and that, accordingly, she could not have witnessed Mr Kaimov’s refusal to receive the tuberculosis treatment. The applicants pointed out that despite numerous reopenings of the proceedings, the investigating authorities had failed to question the other inmates, or to order an expert assessment of the quality of his treatment. Despite the time that has elapsed since his death, the proceedings are still ongoing.
Section 3.02	B.  The Court’s assessment
(a)	1.  Admissibility
42.  At the outset the Court notes that where a violation of the right to life was alleged it has accepted applications from relatives of the deceased (see Aytekin v. Turkey, 23 September 1998, Reports of Judgments and Decisions 1998-VII). The applicants, the mother, the daughter, and the wife of late Mr Kaimov can therefore claim a violation under Article 2 of the Convention pertaining to his death in detention.
43.  The Court further notes that their complaints are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.
(b)	2.  Merits
(i)	(a)  The State’s compliance with its obligation to protect life
1)	(i)  General principles
44.  The applicable general principles were set out in the cases of Karsakova v. Russia (no. 1157/10, §§ 46-49, 27 November 2014); Geppa v. Russia (no. 8532/06, §§ 68‑72, 3 February 2011); and Slimani v. France, (no. 57671/00, §§ 27‑32, ECHR 2004‑IX (extracts)).
2)	(ii)  Application of the general principles to the present case
45.  Turning to the circumstances of the present case, the Court observes that Mr Kaimov died from tuberculosis in custody under the authorities’ control. In order to establish whether or not the respondent State complied with its obligation to protect life under Article 2 of the Convention, the Court must examine whether the domestic authorities did everything reasonably possible, in good faith and in a timely manner, to try to avert the fatal outcome of this case (see Karpylenko v. Ukraine, no. 15509/12, § 81, 11 February 2016).
46.  The Court notes that the crux of the case is whether the critical interruptions in Mr Kaimov’s tuberculosis treatment resulted from his own refusal of drugs or their unavailability in the detention facility.
47.  Taking into account that the circumstances of Mr Kaimov’s death lie wholly within the exclusive knowledge of the authorities, the Court considers that the burden of proof is on the Government to provide a satisfactory and convincing explanation of their version.
48.  The Government’s version was chiefly supported by the medical records made by Mr Kaimov’s doctor in April, May and June 2010. According to them, the patient had not regularly received tuberculosis treatment, because he had refused it (see paragraphs 15 and 17 above). The “talks on the issue” mentioned by the doctor had not convinced the patient to follow the medical instructions.
49.  The Court notes that the aforementioned records were not signed by Mr Kaimov. The absence of his signature was not explained in the medical file. Accordingly, the impugned records did not satisfy the clear requirements of Russian law and could not be considered as an appropriate waiver of medical care (see paragraphs 36 and 37 above). That fact alone casts serious doubt on the validity of the Government’s argument. Taking into account that Mr Kaimov repeatedly complained to the first applicant and to Mr K. of the absence of the medical care, the Court cannot give credence to the Government’s allegation that he had refused medication.
50.  In these circumstances the Court finds that the interruptions in Mr Kaimov’s vital treatment were unjustified (see, mutatis mutandis, Karakhanyan v. Russia, no. 24421/11, §§ 45-50, 14 February 2017).
51.  The Court has already noted the importance of a regular, uninterrupted supply of essential anti-tuberculosis drugs to patients, stating that the failure to ensure such is a key factor in tuberculosis treatment failure (see Makshakov v. Russia, no. 52526/07, § 98, 24 May 2016; Gladkiy v. Russia, no. 3242/03, § 94, 21 December 2010; and Yakovenko v. Ukraine, no. 15825/06, §§ 98-102, 25 October 2007). Regard being had to the seriousness of Mr Kaimov’s condition, the Court considers that the lack of access to anti-tuberculosis drugs endangered his health and life and could have contributed to the fatal outcome of the case. It therefore concludes that in breach of their positive obligations under Article 2 of the Convention the authorities failed to provide him with adequate medical care and thus to protect his right to life.
(ii)	(b)  The State’s compliance with its obligation to ensure an effective investigation
1)	(i)  General principles
52.  The applicable general principles were set out in the cases of Karpylenko (cited above, § 96) and Geppa (cited above, § 86).
2)	(ii)  Application of the general principles to the present case
53.  The Court observes that it has held that where a person dies in custody in circumstances potentially engaging the responsibility of the State, even where the apparent cause of death is a medical condition, Article 2 of the Convention entails a duty on the part of the State to ensure an adequate investigative response (see Karpylenko, cited above, § 96, and Karsakova, cited above, § 54). It finds that in the present case Mr Kaimov’s death in custody and the applicants’ allegations of inappropriate medical treatment triggered the State’s duty to ensure that there was an effective investigation, as required by Article 2 of the Convention.
54.  It reiterates that the system required by Article 2 of the Convention must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness (see Trubnikov v. Russia, no. 49790/99, § 88, 5 July 2005).
55.  From the documents in its possession the Court concludes that following its reopening in February 2015 the criminal investigation has not been completed (see paragraphs 33 and 34 above). It is also apparent that one of the most important investigative measures in cases concerning medical negligence – an expert assessment of the quality of the medical care – has not been performed. The Court cannot overlook the fact that the conclusion of the investigating authorities was mainly built on the statements of the three staff members of the prison hospital. The evidential value of the statements by one of them, Ms I., who appeared to be out of the prison hospital at the relevant time (see paragraph 41 above), is doubtful. Furthermore, the investigating authorities, while giving credit to the statements by the three staff members, individuals who could have been suspected of negligence, did not make any steps to interview Mr Kaimov’s other inmates of the remand prison and other patients’ of the prison hospital.
56.  Having regard to the above considerations, the Court concludes that the authorities failed to carry out a thorough and effective investigation into the allegations that Mr Kaimov’s death could have resulted from the inadequate tuberculosis treatment. There has therefore been a violation of Article 2 of the Convention under its procedural limb.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
57.  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.”
Section 4.01	A.  Damage
58.  The applicants claimed non-pecuniary damage. They left the determination of the amount of compensation to the Court’s discretion.
59.  The Government disagreed, maintaining that there has been no violation of the Convention.
60.  The Court, making its assessment on an equitable basis, considers it reasonable to award the applicants, jointly, 24,000 euros (EUR) under that head, plus any tax that may be chargeable to them on that amount.
Section 4.02	B.  Costs and expenses
61.  The applicants also claimed EUR 4,544 for the costs and expenses incurred before the Court, including legal, administrative and postal costs to be paid into the bank account of the Stichting Russian Justice Initiative.
62.  The Government argued that the claim was ill-founded.
63.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. That award is to be paid into the bank account of the Stichting Russian Justice Initiative as identified by the applicants’ representatives.
Section 4.03	C.  Default interest
64.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the complaints concerning the lack of the adequate medical care for Mr Kaimov and about the ineffective investigation into the circumstances of his death admissible;

2.  Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to protect Mr Kaimov’s right to life;

3.  Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to ensure an effective investigation into the circumstances of Mr Kaimov’s death;

4.  Holds
(a)  that the respondent State is to pay within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 24,000 (twenty-four thousand euros) to the applicants jointly, plus any tax that may be chargeable to them, in respect of non-pecuniary damage;
(ii)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the bank account of the Stichting Russian Justice Initiative as indicated by the applicants’ representatives;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 21 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Branko Lubarda
	Registrar	President