BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF MOSKALYUK v. RUSSIA
(Application
no. 3267/03)
JUDGMENT
STRASBOURG
14 January
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Moskalyuk v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3267/03) 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 Igor Valeryevich
Moskalyuk (“the applicant”), on 11 December 2002.
- The
applicant was represented by Ms Zh. Neronskaya, his mother. The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he was detained in appalling
conditions without adequate medical assistance in contravention of
Article 3 of the Convention.
- On
2 April 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Moscow.
A. Criminal proceedings against the applicant
- On
2 July 1999 the applicant was arrested on suspicion of robbery and
assault and taken to a police station for questioning. He was
released the next day on an undertaking not to leave town. On an
unspecified date he retained a lawyer to represent him.
- According
to the applicant, on 5 July 1999 P., one of the victims of the
assault, identified the applicant as one of the perpetrators. P.
confirmed his allegations during the confrontation with the
applicant.
- On
31 August 1999 the prosecutor authorised the applicant’s
detention pending investigation and trial. On 17 September 1999
the applicant was taken into custody.
- The
bill of indictment prepared by the police investigator on
22 September 1999 was approved by the prosecutor on 1 October
1999 and subsequently forwarded to the Zyuzinskiy District Court of
Moscow.
- On
12 May 2000 the District Court remitted the matter for
additional investigation to the police. The court noted, inter
alia, that the investigator had failed to communicate to the
applicant the materials from the case file, including the forensic
expert’s reports. Following the completion of the
investigation, the case file was resent to the court.
- On
10 October 2000 the District Court granted the applicant’s
request to appoint his mother to represent him before the court.
- On
7 March 2001 the District Court found the applicant guilty as charged
and sentenced him to seven years and six months’ imprisonment.
The Moscow City Court quashed the applicant’s conviction and
remitted the matter for fresh consideration on 5 June 2001.
- It
appears that during the new trial, the District Court refused to
appoint the applicant’s mother to represent him. The applicant
retained counsel B. as his defender.
- On
14 September 2001 the applicant asked the court to release him
pending trial. He referred to appalling conditions of his detention
and his deteriorating health. The court dismissed the applicant’s
request.
- On
14 February 2002 the District Court found the applicant guilty as
charged and sentenced him to seven years and six months’
imprisonment. The court based its findings, inter alia, on
forensic evidence and the testimonies of the applicant’s
accomplice and one of the victims of the assault, who testified in
court. Their testimonies were corroborated by the statements made by
P., another victim of the assault. The court could not establish P.’s
whereabouts and relied on the transcripts of his earlier questioning
by the police.
- The
applicant appealed against his conviction. He challenged the
lawfulness of the trial court’s findings and alleged that the
sentence imposed on him had been too severe. In that respect he
mentioned that he had by then spent more than three years in
appalling conditions awaiting determination of the criminal charges
against him.
- On
26 June 2002 the Moscow City Court upheld the applicant’s
conviction on appeal, dismissing, inter alia, the applicant’s
argument that the sentence was too severe.
B. Conditions of the applicant’s detention and
medical treatment received by the applicant
1. The applicant’s detention from 17 September
1999 to 30 May 2002
- According
to the Government, from 17 September 1999 to 13 March 2001 the
applicant was detained at remand prison no. IZ-48/2 in Moscow.
Between 13 March and 5 July 2001 he was placed in remand
prison no. IZ-48/3 in Moscow. On 5 July 2001 the applicant
was transferred back to remand prison no. 48/2, where he stayed
until 30 May 2002. The applicant did not dispute the information
submitted by the Government.
- According
to the applicant, at all times the number of inmates detained in each
cell exceeded its capacity. The cells were designed to accommodate
twenty to thirty persons. Instead, there were eighty to 100 inmates
held there. The number of beds was not sufficient and the inmates had
to take turns to sleep. As a result of being detained in such
congested conditions for an extended period of time, the applicant
contracted tuberculosis.
- The
Government did not provide any information concerning the number of
inmates detained with the applicant referring to the destruction of
the official relevant records due to the expiration of the statutory
time-limit for their storage.
- On
21 May 2002 the applicant underwent an X-ray examination and was
diagnosed with pulmonary tuberculosis. According to the excerpt from
his medical file, submitted by the Government, he was examined by a
phtisiologist who prescribed him the following medication: isoniazid,
pyrazinamide, ethambutol, rifampicin, multivitamins and special food
rations.
2. Detention in the hospital at remand prison
no. IZ-77/1
- On
30 May 2002 the applicant was transferred to the hospital at
remand prison no. IZ-77/1 in Moscow.
- According
to the excerpt from the applicant’s medical file, submitted by
the Government, he received the following medication: isoniazid,
streptomycin, pyrazinamide, rifampicin and vitamin B. On 6 June
2002 the applicant had a blood test for HIV and syphilis with
negative results. On 21 June 2002 he had general blood and urine
tests, which showed no anomalies.
- According
to the excerpt from the applicant’s medical file submitted by
the Government, on 11 July 2002 the applicant was examined by a
doctor, who found him fit for transfer to the correctional colony and
authorised his discharge from the prison hospital. The doctor further
recommended that the applicant continue in-patient treatment at the
colony and indicated that he should undergo another X-ray examination
in August 2002.
- According
to the Government, the applicant received special food rations as per
applicable domestic standards. His health condition was satisfactory.
3. Transport from Moscow to medical correctional colony
no. LIU-10 in the Omsk Region
- From
23 July to 21 August 2002 the applicant was transported
from Moscow to medical colony no. LIU-10 in the Omsk Region.
- According
to the Government, the conditions of the applicant’s transport
were satisfactory. On the train he had an individual sleeping berth.
The number of detainees on the train did not exceed the applicable
standards. The carriage had natural ventilation, toilet facilities
and electric light. The applicant received food and drinking water
and was allowed to use the toilet facilities when required.
- According
to the applicant, he did not receive any medical treatment during the
whole period of the transfer to the colony.
4. Detention at medical correctional colony no. LIU-10
in the Omsk Region
- On
21 August 2002 the applicant arrived at medical correctional
colony no. LIU-10 in Omsk. He was held there until 14 November
2002.
- According
to the excerpt from the medical file, on 28 August 2002 the
applicant was examined by a doctor who noted that the applicant’s
health condition was satisfactory and that he did not develop good
tolerance to the prescribed medication. The doctor recommended
special food rations and out-patient treatment. He compiled a list of
medicines for the applicant to be given intermittently, notably every
other day. It included ethambutol, rifadin and pyrazinamide.
- On
1 November 2002 the applicant was examined by a phtisiologist,
who noted that the applicant’s condition was satisfactory, his
temperature was 36.60C, and he was receiving the necessary
food rations. The doctor further recommended the same diet and
out-patient treatment prescribed earlier.
5. Transport from the Omsk Region to medical
correctional colony no. LIU-1 in the Kaluga Region
- From
14 November 2002 to 4 January 2003 the applicant was being
transported from the Omsk Region to medical correctional colony
no. LIU-1 in the Kaluga Region. According to the Government, the
conditions of the applicant’s transport were in compliance with
the standards established by Article 3 of the Convention.
- According
to the applicant, he received no medical assistance during the whole
period of the transfer.
6. Detention at medical correctional colony no. LIU-1
in the Kaluga Region
- On
4 January 2003 the applicant arrived at medical correctional
colony no. LIU-1 in the Kaluga Region. According to the
Government, he underwent further treatment there and was cured of
tuberculosis.
- On
8 January 2003 the applicant was admitted to hospital in
accordance with the decision of the medical panel. In-patient
treatment was completed on 27 May 2003. The applicant continued
to receive out-patient treatment and on 24 July 2003 the medical
panel found him completely cured of tuberculosis. The applicant was
discharged from the medical colony.
II. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS
- The CPT report on the visit to the Russian Federation
carried out from 2 to 17 December 2001 provides as follows:
“102. The CPT is also seriously concerned by the
practice of transferring back from SIZO to IVS facilities prisoners
diagnosed to have BK+ tuberculosis (and hence highly contagious), as
well as by the interruption of TB treatment while at the IVS. An
interruption of the treatment also appeared to occur during transfers
between penitentiary establishments.
In the interest of combating the spread of tuberculosis
within the law-enforcement and penitentiary system and in society in
general, the CPT recommends that immediate measures be taken to
put an end to the above-mentioned practice.
- The relevant extracts from Treatment of
Tuberculosis: Guidelines for National Programmes, World Health
Organisation, 2003, provide the recommendations as follows:
“4.4 Recommended standardized
treatment regimens
New cases
Treatment regimens have an initial (or intensive) phase
lasting two months and a continuation phase usually lasting four or
six months. During the initial phase, consisting usually of
isoniazid, rifampicin, pyrazinamide and ethambutol, the tubercle
bacilli are killed rapidly. Infectious patients quickly become
non-infectious (within approximately two weeks). Symptoms abate. The
vast majority of patients with sputum smear-positive TB become
smear-negative within two months. During the continuation phase,
fewer drugs are necessary but for a longer time. The sterilizing
effect of the drugs eliminates the remaining bacilli and prevents
subsequent relapse.”
- The relevant extracts from the 3rd General Report
[CPT/Inf (93) 12] by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (“the
CPT”) read as follows:
38. A prison health care service should be able to
provide medical treatment and nursing care, as well as appropriate
diets, physiotherapy, rehabilitation or any other necessary special
facility, in conditions comparable to those enjoyed by patients in
the outside community. Provision in terms of medical, nursing and
technical staff, as well as premises, installations and equipment,
should be geared accordingly.
There should be appropriate supervision of the pharmacy
and of the distribution of medicines. Further, the preparation of
medicines should always be entrusted to qualified staff
(pharmacist/nurse, etc.).
39. A medical file should be compiled for each
patient, containing diagnostic information as well as an ongoing
record of the patient’s evolution and of any special
examinations he has undergone. In the event of a transfer, the file
should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care
teams, in which particular incidents relating to the patients should
be mentioned. Such registers are useful in that they provide an
overall view of the health care situation in the prison, at the same
time as highlighting specific problems which may arise.
40. The smooth operation of a health care service
presupposes that doctors and nursing staff are able to meet regularly
and to form a working team under the authority of a senior doctor in
charge of the service.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been detained in appalling
conditions from 17 August 1999 to 30 May 2002 in remand
prisons nos. IZ-48/2 and 48/3 in Moscow. He further
complained that he had not received adequate and proper medical
treatment for tuberculosis while in detention in the hospital of
remand prison no. IZ-77/1 in Moscow and at medical correctional
colony no. LIU-10 in the Omsk Region. He further alleged that
during the transfers to and from medical correctional colony
no. LIU-10 in the Omsk Region he had not been treated at all. He
referred to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Conditions of detention from 17 September 1999
to 30 May 2002
Admissibility
(a) The parties’ submissions
- The
applicant submitted that the cells where he had been detained had
been severely overcrowded. He had contracted scabies and various skin
diseases. The remand prison had been unable to provide him with
necessary treatment and his mother had had to send him medicine. As a
result of his lengthy detention in such conditions he had developed
tuberculosis. He noted that he had not raised his grievances before
competent domestic authorities, knowing that it would have been to no
avail. While awaiting trial, he had lodged an application for
release, complaining that the conditions of his detention were
inhuman. The court had dismissed it, completely ignoring his
complaint. The only consequence of his lodging the complaint was
retaliatory conduct on the part of the guards in the remand prison.
- The
Government disputed the description provided by the applicant in
respect of the conditions of his detention. They further pointed out
that the applicant had submitted his complaint more than six months
after the end of the period in question. Accordingly, his complaint
should be rejected for his failure to comply with the six-month rule
set out in Article 35 § 1 of the Convention. The
fact that the applicant raised an issue of the conditions of his
detention in his points of appeal against his conviction was not
relevant. It was not within the appeal court’s jurisdiction to
deal with the issue and to afford redress to the applicant in respect
of the violation of his rights, if any. Alternatively, the Government
reasoned that the applicant’s complaint could also be rejected
for failure to exhaust domestic remedies. The applicant had failed to
complain about the conditions of his detention in the remand prison,
either to the prosecutor or the court. In support of their position,
they referred to the favourable outcome of four sets of civil
proceedings instituted by inmates in Russia seeking either
improvement in conditions of detention or damages.
(b) The Court’s assessment
- The
Court will first examine the Government’s argument that the
applicant failed to bring his grievances to the attention of
competent domestic authorities.
- The
Court accepts the Government’s contention that the fact that
the applicant had complained about the conditions of his detention in
the statement of appeal against his conviction could not be regarded
as an effective remedy in respect of the alleged violation.
- As
regards the opportunity, as suggested by the Government, the
applicant had to complain about the conditions of his pre-trial
detention and, in particular, about overcrowding of the cells in the
remand prison where he awaited determination of the criminal charges
against him, to a prosecutor or a court as suggested by the
Government, the Court observes that it has previously found on
numerous occasions that such a complaint could not be considered an
effective remedy (see, among other authorities, Benediktov v.
Russia, no. 106/02, §§ 27-30, 10 May 2007). Having
regard to the materials submitted by the Government, the Court notes
that they have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Accordingly, the Court dismisses the Government’s objection and
concludes that the applicant was not required to make use of the
avenues of exhaustion indicated by the Government in respect of the
conditions of his detention. The Court also notes that, according to
the applicant, he had been aware of the lack of an effective remedy
in respect of his grievances back in 2001.
- It
remains for the Court to ascertain whether the applicant complied
with the six-month rule set out in Article 35 § 1
of the Convention.
- The
Court reiterates that according to its well-established case-law,
where no domestic remedy is available the six-month period runs from
the date of the act complained of (see, among the most recent
authorities, Opuz v. Turkey, no. 33401/02,
§ 110 in fine, 9 June 2009).
- Having
regard to the principle stated above and the Court’s earlier
finding that no effective domestic remedy existed in respect of the
applicant’s complaint, the Court considers that the six-month
period in respect of the applicant’s complaint about the
conditions of his detention from 17 September 1999 to 30 May
2002 started running from the date on which his detention ended, that
is 30 May 2002. Accordingly, the applicant should have
introduced his complaint no later than 1 December 2002. However,
he lodged it only on 11 December 2002. It follows that this
complaint has been introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the
Convention.
B. Alleged lack of medical assistance in respect of the
applicant’s detention from 30 May 2002 to 4 January
2003
1. Admissibility
- The
Court notes that this part of the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
(i) The Government
- The
Government submitted that the applicant had been detained in
satisfactory conditions throughout the period in question and had
received proper medical assistance. They relied on excerpts from the
applicant’s medical file concerning the period in question.
They further noted that the applicant had received the special food
rations prescribed for inmates suffering from tuberculosis.
- The
Government contended that the applicant had received full and
adequate treatment for tuberculosis while in the hospital of remand
prison no. IZ-77/1 in Moscow and special medical correctional
colony no. LIU-10 in the Omsk Region. The treatment had been in
compliance with statutory standards.
- As
regards the applicant’s transport, the Government noted that
the railway carriage in which the applicant had been detained during
the transfers, had not been overcrowded and the conditions of his
transport had been adequate. Like other detainees, the applicant
received food and drinking water.
(ii) The applicant
- The
applicant conceded that he had undergone a course of chemical
treatment in the hospital of remand prison no. IZ-77/1 in
Moscow. However, the hospital did not have all the medicine required
and his mother had to send him antihistamines and badger and bear
fat. Besides, the chemical treatment had been interrupted due to his
transfer to medical correctional colony no. LIU-10 in the Omsk
Region. The conditions of his transfer were incompatible with
Article 3 of the Convention since he did not receive any medical
assistance during the whole time of the transfer.
- At
medical correctional colony no. LIU-10 he did not receive
in-patient treatment, as had been earlier prescribed to him. After
numerous complaints he had been transferred to medical correctional
colony
no. LIU-1 in the Kaluga Region, where the situation
had changed. However, the transport to LIU-1 had lasted too long and
had put an excessive burden on him given his health condition and
complete lack of any medical treatment.
(b) The Court’s assessment
(i) 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 Labita v. Italy, 6 April 2000,
§ 119, Reports 2000-IV).
- The Court further reiterates that, according to its
case-law, ill-treatment must attain a minimum level of severity if it
is to fall within the scope of Article 3. The assessment of this
minimum is relative; it depends on all the circumstances of the case,
such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the
victim (see, among other authorities, Ireland v. the United
Kingdom, 18 January 1978, § 162, Series A no. 25).
- In
the context of deprivation of liberty the Court has consistently
stressed that, to fall under Article 3, the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering or humiliation connected with the detention (see, mutatis
mutandis, Tyrer v. the United Kingdom, 25 April 1978,
§ 30, Series A no. 26, and Soering v. the United
Kingdom, 7 July 1989, § 100, Series A no. 161).
- In
most of the cases concerning the detention of people who are ill the
Court has examined whether or not the applicant received adequate
medical assistance in prison. The Court reiterates in this respect
that even if Article 3 does not entitle a detainee to be released “on
compassionate grounds”, it always requires that the health and
well-being of detainees are adequately secured by, among other
things, providing them with the requisite medical assistance (see
Kudła v. Poland [GC], no. 30210/96, § 94, ECHR
2000-XI; see also Hurtado v. Switzerland, 28 January 1994, §
79, Series A no. 280-A, opinion of the Commission; Kalashnikov v.
Russia, no. 47095/99, §§ 95 and 100, ECHR 2002-VI;
and Khudobin v. Russia, (no. 59696/00, § 96,
ECHR 2006-... (extracts)).
- The
“adequacy” of medical assistance remains the most
difficult element to determine. The CPT proclaimed the principle of
the equivalence of health care in prison with that in the outside
community (see paragraph 39 above). However, the Court does not
always adhere to this standard, at least when it comes to medical
assistance to convicted prisoners (as opposed to those in pre-trial
detention). The Court has previously held that Article 3 of the
Convention cannot be interpreted as securing to every detained person
medical assistance of the same level as “in the best civilian
clinics” (see Mirilashivili v. Russia (dec.),
no. 6293/04, 10 July 2007). In another case the Court went
further, holding that it was “prepared to accept that in
principle the resources of medical facilities within the penitentiary
system are limited compared to those of civil[ian] clinics”
(see Grishin v. Russia, no. 30983/02, § 76,
15 November 2007).
- On
the whole, the Court reserves sufficient flexibility in defining the
required standard of health care, deciding it on a case-by-case
basis. That standard should be “compatible with the human
dignity” of a detainee, but should also take into account “the
practical demands of imprisonment” (see Aleksanyan v.
Russia, no. 46468/06, § 140,
22 December 2008).
(ii) Application of the above principles
to the present case
- Turning
to the circumstances of the present case, the Court observes that the
applicant raised a number of complaints about the way he was treated
for tuberculosis, while the Government maintained that he received
appropriate medication and was detained in satisfactory conditions.
(α) The applicant’s placement in
hospital at remand prison no. IZ-77/1 in Moscow from 30 May
to 23 July 2002
- As
regards the applicant’s initial placement in hospital at remand
prison no. IZ-77/1 in Moscow, the Court observes that the
parties agreed that the applicant was prescribed proper
anti-tuberculosis treatment. Nor did the applicant allege that the
prescribed chemical treatment was not administered to him. His first
grievance in this context concerned, in substance, the fact that some
of the supplementary drugs, notably antihistamines, were not
available at the pharmacy of the remand prison and his mother had to
purchase those for him. The Court notes that the applicant did not
contend that these purchases had imposed an excessive financial
burden on his family. In these circumstances the Court is prepared to
accept that the lack of antihistamines in the prison hospital was
not, as such, contrary to Article 3 of the Convention.
- As
for the applicant’s allegation that the course of chemical
treatment had not been completed, the Court notes that the
applicant’s in-patient treatment at the prison hospital lasted
fifty-three days, which was one week shorter than the two-month
initial phase of the tuberculosis treatment recommended by WHO (see
paragraph 38 above). The Court does not rule out the possibility that
a shorter period of treatment could be sufficient. Accordingly, it
will look at the medical evidence submitted by the parties to
ascertain whether the doctor’s decision to discharge the
applicant from hospital was justified in the circumstances of the
case.
- The
Court observes that, when deciding on the applicant’s
discharge, the doctor considered the results of the initial X-ray
examination conducted in May 2002 when the tuberculosis was first
detected, the blood test for HIV and syphilis, the general blood and
urine test results obtained in June 2002 and a visual check-up. There
is nothing in the excerpts from the applicant’s medical file
submitted by the Government to suggest that the applicant underwent
any specialised testing, such as a new X-ray examination or a sputum
smear test, which would allow objective medical evidence of the
positive outcome of the treatment to be obtained and the decision to
discharge the applicant from hospital to be justified. In this
respect the Court also takes note of the doctor’s
recommendation that the applicant should continue in-patient
treatment once he arrived at the medical correctional colony to serve
his sentence. In such circumstances the Court accepts that the
applicant’s in-patient treatment at remand prison no. IZ-77/1
in Moscow was not properly completed.
(β) The applicant’s transport to
medical correctional colony no. LIU-10 in the Omsk Region from
23 July to 21 August 2002
- As
regards the applicant’s transport from Moscow to the medical
correctional colony in the Omsk Region, the Court observes that, upon
the applicant’s discharge from the hospital at the remand
prison in Moscow, the doctor prescribed no medication for the time
the applicant was supposed to be in transit. The Court does not lose
sight of the fact that the CPT noted in the report on its visit to
the Russian Federation in 2001 that it was normal practice for the
Russian authorities to interrupt treatment of detainees for
tuberculosis for the duration of their transfer between penitentiary
establishments (see paragraph 37 above). The Court also notes that
the Government did not submit in their observations that this
practice had not been followed in the applicant’s case and that
the applicant had continued to receive treatment for tuberculosis.
Accordingly, the Court accepts the applicant’s argument that he
was deprived of any medical assistance for the twenty-four days he
spent being transported from Moscow to medical correctional colony
no. LIU-10 in the Omsk Region. Even though, as the Government
argued, the conditions of his transport were satisfactory, the fact
that the applicant was detained in a railway carriage which was not
overcrowded and was provided with food and water is of little
significance in such circumstances.
- Having
regard to the above, the Court finds that during the applicant’s
transfer from Moscow to medical correctional colony no. LIU-10
in the Omsk Region, the Russian authorities failed to comply with
their responsibility to ensure adequate medical assistance to the
applicant, who was suffering from tuberculosis and was still in need
of medication.
(γ) The applicant’s detention at
medical correctional colony no. LIU-10 in the Omsk Region from
21 August to 14 November 2002
- As
regards the applicant’s allegation that he did not receive
proper treatment at medical correctional colony no. LIU-10 in
the Omsk Region, the Court observes that the information provided by
the Government in respect of the period in question is rather scarce.
They asserted that the treatment in question had been in compliance
with applicable statutory standards. According to the excerpts from
the medical file, it appears that during the three months the
applicant spent at the correctional colony he saw the doctor twice.
The doctor confined himself to a visual check-up of the applicant and
prescribed out-patient treatment for him. The medical records furnish
no explanation as to why the earlier recommendations to proceed with
in-patient treatment were disregarded. The records also remain silent
as to whether the X-ray examination scheduled to be conducted in
August 2002 was actually carried out. Nor do the medical records
indicate that any tests were administered to follow up on the
applicant’s condition and effectiveness of the treatment.
- Accordingly,
the Court finds that the applicant did not receive adequate medical
assistance at medical correctional colony no. LIU-10 in the Omsk
Region.
(δ) The applicant’s transport
from the Omsk Region to medical correctional colony no. LIU-1 in
the Kaluga Region from 14 November 2002 to 4 January 2003
- Lastly,
the Court will examine the conditions of the applicant’s
transport between medical correctional colonies nos. LIU-10 and
LIU-1, which lasted over a month and a half. The Court observes that
the Government did not dispute the applicant’s allegation that
he was not treated for tuberculosis during the period in question.
Even though, as the Government pointed out, the conditions of the
applicant’s transport were satisfactory, in the Court’s
opinion the lack of medical assistance and supervision for such an
extended period of time caused the applicant, who was suffering from
tuberculosis, distress and suffering and posed a certain risk to his
health. This finding is supported by the fact that the applicant was
placed in hospital upon his arrival at LIU-1, out-patient treatment
being apparently insufficient.
(ε) Summary of the Court’s
conclusions
- Having
regard to the above and the responsibility owed by the state
authorities to provide the requisite medical care for detained
persons, the Court accepts the applicant’s argument that the
medical treatment he received for tuberculosis from 23 July 2002
to 4 January 2003 was not adequate. Despite the seriousness of
his condition, the hospital at the remand prison and the medical
correctional colony did not carry out proper monitoring of the
applicant’s condition and discontinued his treatment for
extended periods of time in the absence of sufficient medical
indications to do so.
- The
Court considers that, in the present case, there is no evidence
showing that there was a positive intention to humiliate or debase
the applicant. However, the absence of any such purpose cannot
conclusively rule out a finding of a violation of Article 3 of
the Convention (see, for example, Hummatov v. Azerbaijan, nos.
9852/03 and 13413/04, § 120, 29 November 2007). In the
Court’s opinion, the lack of adequate medical treatment during
the period in question must have caused the applicant considerable
mental and physical suffering diminishing his human dignity, which
amounted to degrading treatment within the meaning of Article 3 of
the Convention.
- Accordingly,
the Court finds that there has been a violation of Article 3 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 5 of the Convention that
his arrest on 2 July 1999 had been unlawful and that the
prosecutor had authorised his arrest on 31 August 1999 in his
absence. He further complained under Article 6 of the Convention
that he had been questioned on 2 July 1999 when he was in an
inebriated state and in the absence of a lawyer; that he had
belatedly been informed of the investigator’s decision to
commission a forensic expert report; that the authorities had refused
to appoint his mother to represent him in the course of the criminal
proceedings against him; and that the trial court had failed to
examine witnesses P. and N.
- However,
having regard to all the material in its possession, the Court finds
that the events complained of 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 manifestly ill-founded pursuant to Articles 35 § 3
and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Non-pecuniary damage
- The
applicant submitted that he had incurred non-pecuniary damage
resulting from the violation of his rights. However, he did not
specify the amount claimed, leaving it to the Court’s
discretion.
- The
Government considered that the finding of a violation by the Court,
if any, would in itself constitute sufficient just satisfaction.
- The
Court considers that the applicant must have suffered distress and
frustration resulting from the lack of adequate medical assistance.
Making its assessment on an equitable basis, it awards the applicant
20,000 euros (EUR) in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the inadequacy
of the medical assistance provided to the applicant admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the inadequacy of the medical
assistance provided to the applicant between 23 July 2002 and
8 January 2003;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, EUR 20,000
(twenty thousand euros) in respect of non-pecuniary damage, plus any
tax that may be chargeable, to be converted into Russian roubles at
the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 14 January 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
