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FIRST
SECTION
DECISION
Application no.
29687/09
Azamat Rakhmetovich ISMATULLAYEV
against Russia
The
European Court of Human Rights (First Section), sitting on 6 March
2012 as a Chamber composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen, Section
Registrar,
Having
regard to the above application lodged on 27 April 2009,
Having
regard to the decision to grant priority to the above application
under Rule 41 of the Rules of Court,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Azamat Rakhmetovich Ismatullayev, is a Turkmen national
who was born in 1976 and is serving a sentence in a correctional
colony in the Saratov Region. The respondent Government are
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Criminal proceedings against the applicant and
subsequent attempts to reopen the criminal case
- On
25 May 2001 the Supreme Court of the Russian Federation, as court of
final instance, found the applicant guilty of manslaughter and
attempted aggravated murder and sentenced him to fifteen years’
imprisonment.
- On
18 January 2007 a deputy prosecutor for St. Petersburg, acting on the
applicant’s representative’s request and having
considered that a psychiatric forensic examination of the applicant,
performed during the criminal proceedings and finding that he did not
suffer from any mental illness, could have been erroneous, initiated
an inquiry to determine whether there were grounds to reopen the
criminal case against the applicant in view of newly discovered
evidence. The deputy prosecutor noted that it was necessary to
conduct an additional expert examination of the applicant’s
psychological state at the time when he committed the crime.
- After
the additional expert examination had confirmed the findings of the
initial examination, on 4 May 2008 the Vyborg District Prosecutor in
St. Petersburg closed the proceedings, having found no newly
discovered evidence warranting the reopening of the criminal case.
- In
2010 the applicant’s representative lodged a complaint with the
Vyborgskiy District Court in St. Petersburg, alleging that the
investigators had committed a number of procedural violations when
they had authorised the psychiatric expert examinations of the
applicant during the criminal proceedings against him and in the
course of the inquiry in 2007-2008.
- On
30 March 2010 the District Court accepted the complaint in part,
having confirmed that the investigators had failed to notify the
applicant of their decisions authorising the expert examinations. On
24 June 2010 the St. Petersburg City Court quashed that decision
and closed the proceedings. Having noted that the applicant’s
criminal case had been determined by a final judgment in 2001 and
that the inquiry into a possible reopening of the case had been
closed in 2008, the City Court held that the complaint was no more
than an appeal in disguise by which the applicant had attempted to
have matters reviewed which had already been settled by final
decisions. On 28 June 2010 the Supreme Court of the Russian
Federation examined the applicant’s complaint about the
prosecutor’s decision of 4 May 2008 and his request for the
reopening of his criminal case. Both the complaint and the request
were dismissed on the grounds that there were no procedural defects
in the actions of the prosecutors or courts.
2. The applicant’s state of health
- According
to the applicant, following a complex medical examination including
blood tests and an examination by a physician, in December 2007 he
was diagnosed with hepatitis C, which was not considered to be acute.
The applicant submitted that he had contracted the disease at a
dentist’s surgery in the prison hospital. He alleged that he
had not suffered from the illness prior to his detention. Relying on
copies of letters from the head of the St. Petersburg City Hospital
and the acting prosecutor for the Vyborgskiy District, the applicant
further argued that his medical file drawn up prior to 2004 had been
lost or misplaced.
- In
addition, he argued that his numerous complaints of the deterioration
of his health accompanied by acute pain in the right side of the
body, absence of appetite, depression and insomnia and requests for
the provision of adequate medical assistance had been left without
any response, save for the authorities’ assertions that the
treatment for his illness was extremely expensive and the detention
facility did not have the funds to purchase the necessary medicines.
There is, however, no evidence that the applicant has ever raised
those complaints before a prosecutor or a court.
- Having
relied on voluminous evidence, including the applicant’s
medical history, medical certificates, expert reports and
registration logs, the Government submitted that on 27 June 2000 the
applicant had been admitted to temporary detention facility no. 4 in
St. Petersburg. According to the Government, while performing regular
blood tests to identify HIV infection and syphilis, as well as X-ray
exams to identify cases of tuberculosis, the authorities had not
employed routine screening for the presence of hepatitis C virus
(“HCV”) upon the placement of detainees in detention
facilities. On admission to the facility the applicant had been
tested for HIV and syphilis with both tests producing negative
results, but no samples had been taken from him for assays meant to
detect the specific antibody to hepatitis C virus. The Government
insisted that it had not been necessary to establish the applicant’s
HCV infection status as there had been no evidence that he had had a
history of risk of exposure to the virus and he had had no symptoms
of acute or chronic illness. They further pointed out that during the
entire period of his detention the applicant had benefited from close
medical attention, having received, on a number of occasions, courses
of antibacterial treatment in respect of his chronic maxillary
sinusitis in a specialised hospital in St. Petersburg and having
undergone an operation which had radically improved his condition
pertaining to that illness. The applicant had been under regular
medical supervision by prison physicians and otolaryngologists. He
had been repeatedly screened by tuberculosis specialists, with the
tests showing no presence of tuberculosis bacteria. He had also
received routine dental treatment. Every health complaint the
applicant had raised had been promptly and duly addressed by the
medical personnel of the detention facilities. However, the doctors
could not, even remotely, have connected any of those complaints to
his suffering from hepatitis C until the applicant asked a prison
doctor to test his blood for viral hepatitis on 28 October 2010.
Although having noted his surprise at the request in the applicant’s
medical history, the doctor had granted it. The results of the test
performed on 10 November 2010 had showed the presence of antibodies
against HCV.
- The
Government insisted that it was not until 10 November 2010 that the
prison doctors had learned of the applicant’s diagnosis. They,
however, acknowledged that on 7 November 2007 the applicant had been
transferred to the St. Petersburg City Psychiatric Hospital for a
psychiatric examination. On admission to the hospital, he had been
subjected to a thorough clinical assessment, including blood tests.
As a result, he had been diagnosed with chronic hepatitis C in the
“dormant stage”. The applicant, however, had withheld
that information from the prison authorities and the hospital had not
transferred the applicant’s medical records with the results of
the blood tests to the applicant’s detention facility.
- Following
the applicant’s diagnosis in 2010, he had been assigned
inpatient clinical monitoring. A number of additional specialised
tests performed in November and December 2010 had confirmed the
diagnosis of chronic hepatitis C in remission. Examinations by
hepatologists and tests performed to evaluate the applicant for liver
disease had showed that he did not yet require HCV treatment. At the
same time, the prison doctors had attempted to provide the applicant
with psychological support, having tried to identify the possible
cause of the illness, having explained his future treatment and
having counselled him regarding prevention of the spread of the virus
to others. The applicant’s complaints in late November 2010 and
April 2011 of pain in the right subcostal area and a bitter taste in
his mouth had led to his being diagnosed with biliary dyskinesia. The
applicant had received the necessary treatment, including with
hepatoprotective medicines.
- Further
relying on various medical documents, copies of licences and so
forth, the Government argued that the prison hospital in the
correctional colony where the applicant is detained has all necessary
medical specialists and equipment for successful medical management
of the applicant’s condition. They stressed that the applicant
remains under dynamic clinical assessment, including laboratory
testing and regular medical examinations, which will allow a decision
for the introduction of antiviral therapy, if appropriate, to be
promptly taken. However, the most recent medical assessment of the
applicant in June 2011 showed no signs of deterioration in the state
of his health. The results of the clinical testing had confirmed that
the HCV infection is still in remission. The applicant had not made
any complaints as to the state of his health.
B. Relevant domestic and international law and reports
- The
relevant provisions of domestic and international law on health care
of detainees and the authorities’ procedural obligation to
investigate alleged instances of ill-treatment (criminal offences) in
detention facilities are set out in the following judgments: Pakhomov
v. Russia, no. 44917/08, 30 September 2011;
and Yevgeniy Alekseyenko v. Russia, no. 41833/04,
27 January 2011.
15. The
Russian Criminal Code establishes criminal responsibility for the
intentional or negligent infliction of serious health damage with
negligent conduct being punishable by up to three years of limitation
of liberty and intentional actions by up to eight years of
imprisonment (Articles 111 and 118). However, the infliction of
serious health damage by an official as a result of his or her
failure to fulfil professional responsibilities constitutes a
separate, aggravated criminal offence attracting an increased
penalty, with the possibility of sentencing the defendant to
imprisonment coupled with a prohibition on holding an official
position or engaging in the practice of certain activities (Article
118 § 2).
COMPLAINTS
- The
applicant complained under Article 3 of the Convention that he had
contracted hepatitis C in detention and had not received the
necessary medical assistance although his health had continued
deteriorating rapidly.
- The
applicant complained under Article 6 of the Convention of various
procedural violations committed by the prosecution authorities and
courts during the criminal proceedings leading to the final judgment
of 25 May 2001 and when they had dealt with his case in
2007-2010 during his attempts to reopen the criminal case. He further
complained that all of the proceedings had been extremely lengthy.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 ON ACOUNT OF BEING
INFECTED WITH HEPATITIS C
- The
applicant complained that he had contracted the
hepatitis C virus (“HCV”) when he had received dental
treatment in the prison hospital. Article 3 of the Convention reads
as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
- The
Government argued that the applicant had failed to exhaust domestic
remedies, as he had neither complained to the colony administration
nor lodged a criminal law complaint or a tort action, alleging his
having been infected with the virus during his detention. They
further submitted that there was no evidence of his contracting the
infection in detention. While not disputing that the applicant had
received dental care in the colony, the Government argued that it
could not be established “beyond reasonable doubt” that
the HCV infection had been transmitted during a medical procedure.
They stressed that an assessment of the epidemiological situation in
the detention facilities in St. Petersburg had not revealed any cases
of HCV transmission to or among inmates. The Government also stressed
that the medical procedures performed in Russian penitentiary
facilities complied with the highest standards of medical care. It
included the use of sterilised or disposable medical equipment to
avoid exposure of inmates to infections. The Government concluded by
noting that when questioned by the prison doctors on the potential
source of the virus, the applicant had not disputed the possibility
of HCV transmission through sexual contact with an HCV-infected
partner.
- The
applicant submitted that he had not been infected with HCV prior to
his arrest. He argued that immediately after his arrest he had been
sent to hospital no. 3 in St. Petersburg, where his blood had been
tested for viral hepatitis. The tests had showed that he had been
healthy. However, the test records had been lost or misplaced. He
further stressed that his having been HIV-negative supported his
allegation that he had been infected during a medical procedure in
detention and not by way of sexual transmission. In addressing the
Government’s objection of non-exhaustion, the applicant noted
that his complaint of HCV infection was subordinate to his Article 6
complaints. He had raised the present complaint before the Court in
order to obtain priority treatment of his application, the foremost
complaint therein being the unfairness of the criminal case against
him.
B. The Court’s assessment
- While
assessing the Government’s argument that the applicant failed
to exhaust domestic remedies, the Court reiterates that the rule of
exhaustion of domestic remedies referred to in Article 35 of the
Convention obliges those seeking to bring their case against the
State before the Court to first use the remedies provided by the
national legal system. Consequently, States are dispensed from
answering before an international body for their acts before they
have had an opportunity to put matters right through their own legal
system. The rule is based on the assumption, reflected in Article 13
of the Convention – with which it has close affinity –
that there is an effective remedy available to deal with the
substance of an “arguable complaint” under the Convention
and to grant appropriate relief. In this way, it is an important
aspect of the principle that the machinery of protection established
by the Convention is subsidiary to the national systems safeguarding
human rights (see Kudła v. Poland [GC], no. 30210/96,
§ 152, ECHR 2000 XI, and Handyside
v. the United Kingdom, 7 December 1976, § 48,
Series A no. 24).
- An
applicant is normally required to have recourse only to those
remedies that are available and sufficient to afford redress in
respect of the breaches alleged. The existence of the remedies in
question must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, inter alia, Vernillo v. France,
20 February 1991, § 27, Series A no. 198, and Johnston and
Others v. Ireland, 18 December 1986, § 22, Series A no.
112). It is incumbent on the Government claiming non-exhaustion to
satisfy the Court that the remedy was an effective one available in
theory and in practice at the relevant time, that is to say, that it
was accessible, was one which was capable of providing redress in
respect of the applicant’s complaints and offered reasonable
prospects of success. However, once this burden of proof has been
satisfied it falls to the applicant to establish that the remedy
advanced by the Government had in fact been used or was for some
reason inadequate and ineffective in the particular circumstances of
the case or that there existed special circumstances absolving him or
her from the requirement.
- The
Court would emphasise that the application of the rule must make due
allowance for the fact that it is being applied in the context of
machinery for the protection of human rights that the Contracting
Parties have agreed to set up. Accordingly, it has recognised that
the rule of domestic remedies must be applied with some degree of
flexibility and without excessive formalism (see Cardot v. France,
19 March 1991, § 34, Series A no. 200). It has further
recognised that the rule of exhaustion is neither absolute nor
capable of being applied automatically: in reviewing whether it has
been observed it is essential to have regard to the particular
circumstances of each individual case (see Van Oosterwijck v.
Belgium, 6 November 1980, § 35, Series A no. 40). This
means amongst other things that it must take realistic account not
only of the existence of formal remedies in the legal system of the
Contracting Party concerned but also of the general legal and
political context in which they operate, as well as the personal
circumstances of the applicants (see Akdivar and Others v. Turkey,
16 September 1996, §§ 65-68, Reports of Judgments and
Decisions 1996 IV).
- Where
the fundamental right to protection against torture, inhuman and
degrading treatment is concerned, the preventive and compensatory
remedies have to be complementary in order to be considered
effective. The existence of a preventive remedy is indispensable for
the effective protection of individuals against the kind of treatment
prohibited by Article 3 of the Convention. Indeed, the special
importance attached by the Convention to that provision requires, in
the Court’s view, that the States parties establish, over and
above a compensatory remedy, an effective mechanism in order to put
an end to any such treatment rapidly. Had it been otherwise, the
prospect of future compensation would have legitimised particularly
severe suffering in breach of this core provision of the Convention
(see Vladimir Romanov v. Russia, no. 41461/02, § 78, 24
July 2008.
- Having
regard to the principles cited above, the Court is not convinced that
either a complaint to the prison authorities or a tort action in the
circumstances of the present case could have been considered to
provide effective relief for the applicant’s claim of having
been infected with the hepatitis C virus in detention.
- In
particular, the Court notes that the primary responsibility of the
prison officials in charge of the detention facility is that of
ensuring the appropriate conditions of detention, including the
adequate health care of prisoners. It follows that a complaint of
negligent actions by prison medical personnel resulting in
transmission of a life-threatening infection would necessarily call
into question the way in which the prison management had discharged
its duties and complied with the domestic legal requirements.
Accordingly, the Court does not consider that the prison authorities
would have a sufficiently independent standpoint to satisfy the
requirements of Article 35 of the Convention (see Silver and
Others v. the United Kingdom, 25 March 1983, § 113, Series A
no. 61): in deciding on a complaint concerning an inmate’s
medical care for which they are responsible, they would in reality be
judges in their own cause (see Goginashvili v. Georgia, no.
47729/08, § 55, 4 October 2011).
- As
to the claim for compensation, the Court, while noting the
Government’s failure to illustrate the practical effectiveness
of the remedy with examples from the case-law of the domestic courts,
also reiterates that a judicial award of compensation to an applicant
in a case raising an arguable claim under Article 3 of the Convention
represents only one part of the group of measures necessary to
provide redress for the actions of State agents (see, mutatis
mutandis, Vladimir Romanov v. Russia, cited
above, § 79). The Court is of the opinion that cases of
transmission of life threatening infections, such as HIV and
hepatitis C, resulting from negligent or wilful actions of State
agents cannot be remedied exclusively through an award of
compensation to the victim, particularly so when domestic law, as in
the present case, imposes an obligation on the authorities to open a
criminal inquiry and identify those responsible. This is so because,
if the authorities could confine their reaction in such cases to the
mere payment of compensation, it would be possible in some cases for
agents of the State to abuse the rights of those within their control
with virtual impunity, and the general legal prohibition of torture
and inhuman and degrading treatment, despite its fundamental
importance, would be ineffective in practice (see, among many other
authorities, mutatis mutandis,
Krastanov v. Bulgaria, no. 50222/99, § 60, 30 September
2004, and Yaşa v. Turkey, 2 September 1998, §
74, Reports 1998-VI; Tanrıkulu v. Turkey [GC], no.
23763/94, § 79, ECHR 1999-IV; Velikova v. Bulgaria,
no. 41488/98, § 89, ECHR 2000-VI; Salman v. Turkey
[GC], no. 21986/93, § 83, ECHR 2000-VII; Gül v. Turkey,
no. 22676/93, § 57, 14 December 2000; Kelly and Others
v. the United Kingdom, no. 30054/96, § 105, 4 May
2001; and Avşar v. Turkey [GC], no. 25657/94, § 377,
ECHR 2001-VII).
- Having said that, the Court reiterates its finding
made on a number of occasions that a criminal law complaint may be
regarded as an adequate remedy within the meaning of Article 35 §
1 of the Convention for an applicant to complain of a violation of
his rights guaranteed by Article 3 of the Convention (see, among
other authorities, Mikheyev v. Russia, no. 77617/01, §
86, 26 January 2006, with further references, and Hıdır
Durmaz v. Turkey, no. 55913/00, § 29, 5 December 2006).
Indeed, the applicant should have provided the State with an
opportunity to investigate the case and answer his grievances. The
criminal law inquiry could have allowed assembling evidence necessary
to corroborate the applicant’s allegation of negligent actions
by the prison medical personnel leading to his contracting the virus.
The investigating authorities would have had broad legal powers to
visit the detention facility, interview detainees, study documents
including medical records, obtain statements from the prison
officials, collect forensic evidence, commission expert reports and
take all other crucial steps for the purpose of establishing the
veracity of the applicant’s account. The investigating
authorities’ role was critical not only to the pursuit of
criminal proceedings against the alleged perpetrators of the offence
but also to the pursuit by the applicant of other remedies to redress
the harm he had suffered (see Dedovskiy and Others v. Russia,
no. 7178/03, §§ 98-101, 15 May 2008).
- The Court therefore concludes that by failing to
submit a criminal law complaint to the investigating authorities the
applicant stripped the State of the opportunity to remedy the alleged
violation of his rights guaranteed by Article 3 of the Convention. An
examination of the case as submitted does not disclose the existence
of any special circumstances which might have absolved the applicant
according to the generally recognised rules of international law from
exhausting that domestic remedy at his disposal. This part of the
application must therefore be dismissed under Article 35 §§
1 and 4 of the Convention for failure to exhaust domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE QUALITY OF MEDICAL ASSISTANCE
- The
applicant further complained under Article 3 of the Convention that
the authorities had not taken steps to safeguard his health and
well being, having failed to provide him with adequate medical
assistance after they had learned of his suffering from hepatitis C.
Article 3 of the Convention was cited above.
A. Submissions by the parties
- The
Government once again raised the objection of the applicant’s
failure to apply to the competent domestic authorities, this time
with a complaint of inadequate medical services. In the alternative,
they argued that having learned of the applicant’s condition in
2010 the prison medical personnel had taken every possible precaution
to maintain his health at a satisfactory level. The applicant had
been immediately subjected to dynamic clinical monitoring, regularly
being tested to identify the progress of the disease and correctly
determine the moment when treatment may be required by the level of
the virus. While having pointed to a delay in detecting the HCV
infection, the Government stressed that it had been entirely due to
irresponsible actions by the applicant, who had not informed prison
officials that he had been diagnosed with the virus in a civil
hospital in 2007. In any event, the delay in detection had had no
negative effect on the applicant’s condition. In conclusion,
the Government stressed that at the present time the applicant’s
state of health was satisfactory and he continued to receive full
medical attention.
- The
applicant reminded the Court that chronic hepatitis C is a lifelong
illness with the infection being present in the human body for years
and in most cases leading to a serious condition, such as cirrhosis
of the liver or liver cancer. Patients should be placed under regular
medical supervision and should be considered as potential candidates
for antiviral therapy. Without providing any explanation, the
applicant did not dispute that he had not informed the authorities
about the infection until the test in 2010 and he directed his
complaints towards the alleged absence of medical assistance after
that test. He was concerned by the fact that he had not yet started
receiving antiviral therapy.
B. The Court’s assessment
- The
Court notes the Government’s objection as to the non exhaustion
by the applicant of the available avenues of domestic protection.
However, it does not consider it necessary to deal with the
objection, as it, in any event, considers the present complaint
inadmissible for the following reasons.
- The
Court reiterates that the State must ensure that a person is detained
in conditions which are compatible with respect for human dignity,
that the manner and method of the execution of the measure do not
subject him to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention and that, given
the practical demands of imprisonment, his health and well-being are
adequately secured (see Kudła, cited above, §§
92-94; and Popov v. Russia, no. 26853/04, § 208, 13 July
2006). In most of the cases concerning the detention of people who
are ill, the Court has examined whether or not the applicant received
adequate medical assistance in prison. The Court reiterates in this
respect that even if Article 3 does not entitle a detainee to be
released “on compassionate grounds”, it has always
interpreted the requirement to secure the health and well-being of
detainees, among other things, as an obligation on the part of the
State to provide detainees with the requisite medical assistance (see
Kudła, cited above, § 94; Kalashnikov v.
Russia, no. 47095/99, §§ 95; and 100, ECHR 2002-VI;
and Khudobin v. Russia, no. 59696/00, § 96,
ECHR 2006-XII (extracts)).
- The
“adequacy” of medical assistance remains the most
difficult element to determine. The Court insists that, in
particular, authorities must ensure that diagnosis and care are
prompt and accurate (see Hummatov v. Azerbaijan, nos.
9852/03 and 13413/04, § 115, 29 November 2007; Melnik v.
Ukraine, no. 72286/01, §§ 104-106, 28 March 2006; and,
mutatis mutandis, Holomiov v. Moldova, no. 30649/05, §
121, 7 November 2006), and that where necessitated by the nature of a
medical condition, supervision is regular and systematic and involves
a comprehensive therapeutic strategy aimed at curing the detainee’s
health problems or preventing their aggravation (see Hummatov,
cited above, §§ 109, 114; Sarban v. Moldova, no.
3456/05, § 79, 4 October 2005; and Popov v. Russia,
cited above, § 211). 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).
- Turning
to the facts of the present case, the Court observes that while
disputing the exact date, the parties agreed that towards the end of
2007 during the applicant’s stay in the St. Petersburg City
Psychiatric Hospital he had been diagnosed with hepatitis C. Despite
being concerned with the Government’s admission that Russian
detention facilities do not employ routine testing of inmates for the
presence of HCV infection, even for those detainees who have an
identifiable risk factor, the Court cannot overlook the fact that the
applicant did not reveal the results of the testing in the
psychiatric hospital to the prison officials. In this respect, the
Court reiterates its previous finding that patients,
such as the applicant, have the responsibility to communicate and
cooperate with health authorities and to contribute to the overall
health of the community (see Vasyukov v. Russia,
no. 2974/05, § 79, 5 April 2011).
In the absence of any evidence that the applicant had a
history of risk of exposure to the virus and given the lack of
complaints by him about the state of his health which could have
provided guidance to the prison medical staff that he might be
suffering from viral hepatitis, the Court is not prepared to hold the
Russian authorities responsible for a delay in detecting the disease.
The Court will therefore count the test in November 2010, when the
prison authorities learned of the applicant’s infection, as the
starting point in the assessment of the quality of the applicant’s
medical care.
- The
Court is unable to identify any defect in the medical services
afforded to the applicant in the detention facility. Following the
examination in November 2010 when the applicant tested positively for
the presence of the HCV antibody, he was promptly placed under
dynamic clinical supervision. The prison medical personnel initiated
a comprehensive health evaluation to gather all possible information
on the level of the virus to determine the proper course of the
management of the illness. The evidence put before the Court shows
that the Russian authorities used all existing means for the correct
diagnosis of the applicant’s condition, thoroughly considered
the possibilities for the progression of the illness and the risk of
further complications developing, undertook an assessment of the
necessity to initiate antiviral therapy and, having considered that
such therapy was not yet required, continued close monitoring and
in-depth examinations. As to the applicant’s argument that he
has not yet started receiving antiviral therapy, the Court does not
see any reason to doubt the decision of the medical specialists
attending on the applicant. In the absence of any signs of
deterioration of his health and in the circumstances of his close
clinical monitoring by the medical personnel performing various types
of assays to determine the severity of the disease and its prognosis
and to predict the likelihood of the applicant’s response to
treatment, the authorities’ decision to dispense with therapy,
that is, with generally aggressive medical procedures, does not
appear to be unreasonable (see Khatayev v. Russia,
no. 56994/09, § 88, 11 October 2011).
- Furthermore,
the Court attributes particular weight to the fact that the facility
administration not only ensured that the applicant was attended to by
doctors, that his complaints were heard and that he was subjected to
regular laboratory testing, but they also created the necessary
conditions for him to fully comprehend his diagnosis and accept
future treatment. They offered him psychological support and
attention, providing clear and complete explanations of medical
procedures and possible venues for treatment. The Court also notes
that in full compliance with good clinical practice the Russian
authorities counselled the applicant on how to avoid the transmission
of HCV to others.
- The
fact that the medical records containing the diagnosis of the
applicant with chronic hepatitis C in remission showed no signs of
deterioration of his health is yet more confirmation of the
effectiveness of the medical care. Finally, the Court is satisfied
that the authorities efficiently addressed any other health
complaints that the applicant might have had.
- To
sum up, the Court considers that the Government provided sufficient
evidence to enable it to conclude that the domestic authorities,
without undue delay, afforded the applicant comprehensive, effective
and transparent medical assistance. 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the Court has examined the other complaints submitted by the
applicant under Article 6 of the Convention. 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 (a) and 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren
Nielsen Nina Vajić
Registrar President
