In the case of Salakhov and Islyamova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 12 February 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
28005/08) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Linar Irekovich Salakhov (“the first
applicant”), on 8 June 2008. On 2 August 2008 the first applicant died, and on
1 September 2008 his mother, also a Ukrainian national, Ms Aliya Fazylovna
Islyamova (“the second applicant”), expressed the wish to pursue the
application on his behalf and joined her own complaints to the case.
The applicants were represented by Mr A. Lesovoy,
a lawyer practising in Simferopol. The Ukrainian Government (“the Government”)
were most recently represented by their Agent, Mr Nazar Kulchytskyy.
The applicants complained under Articles 2 and 3
of the Convention that prompt and adequate medical care had not been available
to the first applicant in detention, which had jeopardised his life. They also
complained that the State authorities had failed to ensure his immediate
hospitalisation as was indicated by the Court under Rule 39 of the Rules of Court.
Following the death of the first applicant, his mother blamed the authorities
for it. In addition to the aforementioned grievances, she complained about her
son’s handcuffing in hospital. Furthermore, she complained that there had been
no effective domestic investigation into his death. Lastly, the second
applicant complained under Article 3 of the Convention about her own
suffering in respect of the aforementioned.
On 7 September 2009 the President of the Fifth
Section decided to communicate to the Government the complaints under Articles
2 and 3 of the Convention in respect of the first applicant. It was also
decided to rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
On 29 May 2012 the Chamber decided, under Rule 54
§ 2 (c) of the Rules of Court, that the parties should be invited to submit
further written observations on the admissibility and merits of the application,
as regards the complaint under Article 3 of the Convention in respect of the
second applicant and the State’s compliance with the interim measure indicated
by the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant was born in 1981 and died on
2 August 2008. The second applicant was born in 1955 and lives in the town of Zuya in Crimea.
A. Background information
On 30 September 2005 the first applicant tested
HIV positive.
On 2 February 2006 the Centre for the Prevention
and Combating of Aids in Crimea (“the Aids Centre”) informed him of the test
results and invited him to register for medical monitoring. The first applicant
did not, however, follow the advice (see also paragraphs 21 and 59 below).
B. Criminal proceedings against the first applicant
and his medical treatment in detention
On 20 November 2007 the first applicant was
arrested by the police on suspicion of having robbed an acquaintance of a
mobile phone. According to the second applicant, on the same day her son
informed the investigator about his HIV status and expressed the fear that his
health might deteriorate in detention. This information was allegedly ignored.
According to the Government, the first applicant did not disclose his HIV
status.
The first applicant was placed in the Temporary
Detention Facility of the Bakhchysaray Police Station (“the ITT”). The officer
on duty examined him and reported that he had no visible injuries and had raised
no complaints.
On 23 November 2007 the Bakhchysaray District
Court (“the Bakhchysaray Court”) remanded the first applicant in custody
pending trial.
On 30 November 2007 the first applicant was
X-rayed in the local polyclinic; no lung pathology was revealed.
On 2 December 2007 he was taken from the ITT to
Simferopol Pre-Trial Detention Centre no. 15 (“the SIZO”), where he was
examined by a therapist (general practitioner), a dermatologist, a dentist and
a psychiatrist. All found him to be in good health. According to the medical
records, the first applicant did not have any health-related complaints and did
not report any illnesses. His height and weight were recorded as 180 cm and 78 kg
respectively.
The first applicant was detained in the SIZO
from 2 to 28 December 2007, then subsequently from 10 January to 10 February
2008, and from 18 February to 2 June 2008. During the intervening periods,
from 28 December 2007 to 10 January 2008, from 10 to 18 February, and
from 2 to 20 June 2008, he was held in the ITT.
According to the records of his medical
examinations of 10 January and 10 and 18 February 2008, he appeared to be in
good health and did not raise any health-related complaints.
According to the SIZO medical register, on 28,
29 and 30 May 2008 the first applicant complained of nasal stuffiness,
rhinitis, and a sore throat. The SIZO therapist diagnosed him with an “acute
respiratory viral infection” and prescribed medication.
As to the intervening period between the
aforementioned records of 18 February and 28 May 2008, no documents are
available in the case file. The applicants submitted, however, that in early
March 2008 the first applicant’s health had sharply deteriorated. He allegedly
had a constant fever of 39-40ºC and suffered from serious digestive disorders.
According to the applicants, the administration of the detention facilities
called for an ambulance in that regard on many occasions. The nature of the
ambulance interventions remained unclear.
On 31 May 2008 the first applicant was additionally
examined by an infectious disease specialist at the SIZO, who issued a note
stating the following. The first applicant had been complaining of experiencing
fevers and losing weight for the preceding two months. The doctor recommended
an HIV test, to which the first applicant agreed. The test was scheduled for
2 June 2008. However, it did not take place because of the first applicant’s
transfer from the SIZO to the ITT (see paragraph 14 above).
On 2 June 2008, following another transfer from
the SIZO to the ITT, the first applicant complained to the ITT medical
attendant about feeling weak and having fever and back pain. The medical
attendant administered some antipyretics to him.
On 3 June 2008 the first applicant was taken to
the Central Hospital, where he was examined by a therapist and underwent
ultrasound scans of his liver, gallbladder, pancreas, spleen and kidneys. The
following tests were also carried out: chest X-ray, electrocardiogram,
esophagogastroduodenoscopy, as well as general blood and urine analyses. The
therapist diagnosed the applicant with an ulcer, gastrointestinal hemorrhage,
haemorrhoids, chronic bronchitis, and suspected HIV infection.
On 4 June 2008 the Chief Doctor of the Aids
Centre informed the second applicant, in reply to her enquiry of 3 June 2008,
that her son had tested HIV positive on 30 September 2005, and had been
informed of the result on 2 February 2006, but that he was not registered for
monitoring in that Centre.
On 5 June 2008 the first applicant was again
taken to the Central Hospital, this time for examination by an infectious
disease specialist. According to a note issued by the doctor, the first
applicant complained to him about suffering from stomach aches, mouth lesions, a skin rash, coughing, and shortness of breath. He
also complained of having lost about 10 kg during the preceding three
months. Having examined the first applicant, the doctor diagnosed him with pneumocystis
pneumonia, oropharynx-esophagus candidiosis (thrush) and an ulcer. Moreover, he
concluded that the symptoms disclosed HIV infection
at the fourth clinical stage. While the doctor assessed the first
applicant’s condition as being “moderately severe” and noted that he required
medical treatment for the aforementioned conditions, a general conclusion was
reached that there was no urgent need for hospitalisation.
The first applicant’s mother was informed of the
diagnoses. She bought the prescribed medications, and the ITT medical attendant
administered them to her son.
On 6 June 2008 the first applicant’s lawyer
requested the Bakhchysaray Court to release his client on account of his
critical state of health. He noted that the first applicant required urgent
specialised medical treatment because he had HIV infection at the fourth
clinical stage and concomitant oesophagal candidosis and pneumocystis
pneumonia. The lawyer stated that the first applicant’s life hung in the
balance and that in order to save it he needed to be at liberty so as be able
to seek proper medical care. Moreover, the lawyer pointed out, his client had a
permanent place of residence and he had neither absconded from the
investigation nor hindered it in any way. Furthermore, given his desperate
health condition he did not present any danger to society.
The Bakhchysaray Court rejected the
above-mentioned request (this ruling is not available in the case file before
the Court).
On 11 June 2008 the Bakhchysaray District
Prosecutor’s Office instructed the local police department to take the first
applicant to the Central Hospital for another examination with a view to
clarifying whether his state of health was compatible with detention.
On 13 June 2008 the first applicant was taken to
the Central Hospital, where he was again examined by an infectious disease
specialist. The doctor reached a preliminary conclusion that the first
applicant was suffering from HIV infection at the second clinical stage, which
did not necessitate urgent hospitalisation. A further examination in the Aids
Centre was recommended with a view to deciding on the necessary medical
treatment. The doctor also made arrangements for the first applicant to have
laboratory tests, such as blood and urine analyses and a sugar test, and a
chest X-ray.
On 16 June 2008 the applicants requested the
Court to indicate to the Ukrainian Government, under Rule 39 of the Rules of
Court, that the first applicant should be hospitalised and treated as a matter
of urgency given the serious deterioration of his health and the alleged lack
of adequate medical treatment.
On 17 June 2008 the President of the Fifth
Section decided to grant that request and to indicate to the respondent
Government, under Rule 39 of the Rules of Court, that the first applicant
“should be transferred immediately to a hospital or other medical institution
where he [could] receive the appropriate treatment for his medical condition
until further notice.” On the same day (Tuesday, a working day) a fax message
was sent to the Government informing them of this decision.
On 18 June 2008 the first applicant’s lawyer
once again requested the Bakhchysaray Court to release his client. He
reiterated that the first applicant’s life was in danger. The lawyer also
referred to the aforementioned decision of the Court regarding the application
of Rule 39 of the Rules of Court in the first applicant’s case.
On the same date, 18 June 2008, following
another enquiry by the Bakhchysaray police about the need for the first
applicant’s hospitalisation, the Chief Doctor of the Infectious Diseases
Department of the Central Hospital stated that the first applicant did not
require urgent hospitalisation.
As a result, the Bakhchysaray Court rejected the
first applicant’s request for release submitted earlier that day.
On 18 June 2008 the second applicant complained
to the Chief Doctor of the Central Hospital about the alleged failure of its
staff to provide her son with adequate medical assistance in spite of the
applications she had made in that regard on 4 and 5 June, as well as twice on
13 June 2008. She insisted that his life was in danger. According to the second
applicant, her son had never undergone a complete medical examination. She
considered that the doctors were avoiding treating him because he was, firstly,
HIV-positive and, secondly, a detainee.
On 20 June 2008 the first applicant was taken to
the Aids Centre, where the following diagnoses, classified as preliminary, were
established: HIV infection at the fourth clinical stage, systemic candidosis of
the oropharynx and oesophagus, continuous fever with expressed intoxication
syndrome, a loss of body weight of more than 15%, and seborrheic dermatitis of
the scalp. The doctors at the Aids Centre concluded that he required an
additional examination with a view to clarifying the diagnoses, as well as in-patient
medical treatment.
On the same day, he was transferred to the Central Hospital, where he was placed in a ward under police guard. According to the second
applicant, her son was kept continuously handcuffed to his bed. She submitted
to the Court his two photos taken on 25 June 2008. They showed the first
applicant with his left hand handcuffed to the hospital bed. According to the
letter of the First Deputy Minister of Public Health to the Government Agent of
23 October 2009 (see also paragraph 67 below), which referred to the first
applicant’s medical file in the Central Hospital, on 20 June 2008 he arrived
there handcuffed. However, it was not recorded in the medical file whether he
remained handcuffed throughout his treatment in that hospital.
At some point on 20 June 2008 the first
applicant wrote an “explanatory note” to the police, according to which he had
informed neither the SIZO nor the ITT administration about his HIV infection
“for understandable reasons”. After his mother had informed them that he might
have that diagnosis, on 5 and 13 June 2008 he had undergone medical
examinations in the Central Hospital resulting in the prescription of certain
medication. The medical attendant had later administered that medication to him
in the ITT. The first applicant stated that he had no complaints about the ITT
staff. According to the second applicant, however, her son had written the
aforementioned note under duress.
On 24 June 2008 the first applicant wrote
another note in which he stated that he had started to feel unwell during his
detention (the date is illegible on the available copy). He noted that he had
sought examination by a therapist on account of his continuous fever, as well
as kidney, liver and intestinal pain. The medical attendant had been sent to
him instead and had merely given him antipyretics. As he had not got any
better, at some point between 22 and 25 May 2008 the medical attendant had
begun administering injections of ceftriaxone (an antibiotic) to him. The fever
and backache had, however, not ceased. As a result, on 29 May 2008 he had been
placed in the SIZO hospital, without any changes to his treatment. Following
his transfer to the ITT, on 4 June 2008 he had started to intake some other
medicines which had been bought by his mother.
On 24 June 2008 the first applicant’s lawyer
again requested the release of his client, referring to the seriousness of his
condition, as well as to the fact that the prosecutor did not object to his
release.
On the same date the Bakhchysaray Prosecutor
requested the judge dealing with the first applicant’s criminal case to bring
forward the hearing scheduled for 3 July 2008 given “the critical condition” of
the first applicant and the need for him to undergo treatment in Simferopol
Hospital no. 7, which specialised in the treatment of Aids (“Hospital no. 7”).
The prosecutor noted the necessity to examine the aforementioned release
request promptly.
On an unspecified date (possibly 4 July 2008 -
see paragraph 47 below) the Bakhchysaray Court rejected the aforementioned request
for the first applicant’s release.
On 26 June 2008 the Chief Doctor of the Central Hospital responded to the second applicant’s complaint about the alleged failure to
provide her son with the required medical assistance. He noted that the
available medical records were insufficient for evaluating the development of
his disease over time. The requests for medical assistance addressed to the
Hospital had been of a contextual nature and assistance had been duly provided.
On the same day the first applicant was
transferred from the Central Hospital to Hospital no. 7.
According to an extract from his medical record
while in Hospital no. 7, his diagnoses included those established by the Aids
Centre on 20 June 2008 (see paragraph 34 above), plus the following:
pneumocystis pneumonia, second-degree anaemia, heavy immunosuppression (the CD4
count
being 48 cells/mm3), and encephalitis of unclear origin.
Furthermore, toxic hepatitis, hepatolienal syndrome, superficial gastritis, and
duodenogastric reflux were indicated as concurrent illnesses.
According to the letter of the First Deputy Minister
of Public Health to the Government Agent of 23 October 2009 (see also paragraph
67 below), which further referred to information from the management of
Hospital no. 7, the first applicant had been handcuffed during his treatment in
Hospital no. 7 from 26 June to 18 July 2008. At the same time, it was noted in
the aforementioned letter that there was no information as to whether the
handcuffing had been constant.
On 2 July 2008 the ITT Governor examined the
second applicant’s complaint about the alleged failure to provide her son with
the required medical assistance and delivered a decision refusing to launch a
criminal investigation into the matter. He noted that the first applicant had
hidden from the administration the fact that he was HIV-positive. In any event,
he had received adequate medical care during his detention in the ITT.
On the same day the Chief Doctor of Hospital no.
7 wrote to the Chief of the Bakhchysaray Police Department, stating that the
first applicant required lengthy medical treatment, that he needed to be
unrestricted in his movements, and that any interruption in his treatment would
trigger a sharp deterioration in his health.
On 4 July 2008 the Bakhchysaray Court found the
first applicant guilty of fraud (instead of the robbery charge advanced by the
prosecution - see paragraph 9 above) and sentenced him to a fine of 850
Ukrainian hryvnias (at the time equivalent of 115 euros). It was noted in the judgment
that, until it became final the first applicant was to remain in detention.
On 10 July 2008 antiretroviral therapy began to
be administered to the first applicant in Hospital no. 7. According to the
information provided by the Public Health Ministry in its letter to the
Government Agent of 23 October 2009, the first applicant had refused -
apparently on one occasion - to take the prescribed medication.
On the same date, 10 July 2008, the second
applicant requested the Chief of the Bakhchysaray Police Department to allow
her to visit her son and to take care of him in the hospital given his critical
condition. She also complained to the Bakhchysaray Prosecutor about the first
applicant’s continuous handcuffing and sought its discontinuation.
On 15 July 2008 the Chief of the Bakhchysaray
Police replied to the second applicant that her son would in any case soon be
released once the judgment of 4 July 2008 became final.
On 18 July 2008 the first applicant’s lawyer
also sought discontinuation of the handcuffing, noting that it was already
clear that his client was about to die; nevertheless, he remained guarded by
two police officers in a ward with barred windows, handcuffed to his bed. Such
security measures were not only unjustified, but also inhuman. The lawyer
further submitted that, as the second applicant had discovered, certain police
officers guarding her son had mockingly offered him to install a cable in the
ward and to handcuff him to that cable so that his movements would be
“practically unrestrained”.
C. The first applicant’s medical treatment after his
release from detention and his death
On 18 July 2008 the police lifted the security
measures in respect of the first applicant (apparently on the ground that the judgment
of 4 July had become final), and the second applicant took him home. She wrote
a note to the administration of Hospital no. 7 stating that she was taking her
son home “for family reasons”.
On the following day, however, the first
applicant was hospitalised again in Hospital no. 7 because of a deterioration
in his health.
On 1 August 2008 the second applicant took him
home again, having written a note to the hospital administration similar to
that of 18 July 2008.
On 2 August 2008 the first applicant died.
D. Investigation into the death of the first applicant
Following the death of her son, the second
applicant complained to the prosecution authorities about the alleged denial of
timely and adequate medical care available for him in detention which,
according to her, had led to his death.
On 20 January 2009 the Bakhchysaray Prosecutor
informed her that the ITT governor’s decision of 2 July 2008 (see paragraph 45
above) had been quashed and the investigation into the medical assistance provided
to the first applicant had been resumed.
On 17 February 2009 the Ministry of Public
Health set up a commission for investigating the matter.
On 20 March 2009 the commission issued an official
investigation report which concluded that the Central Hospital’s doctors bore
no responsibility for the first applicant’s death. It noted that although the
Aids Centre had informed him about his HIV-positive status and had explained to
him the necessity of medical monitoring as early as on 2 February 2006,
the first applicant had not sought any medical examinations or monitoring. As a
result, the antiretroviral therapy had not been started in good time, thus
complicating the development of the disease. The commission gave its general
findings as follows:
“1. Medical care to persons in custody is the duty
of the police medical staff.
2. Specialists of the Central Hospital do not
provide medical consultations or examinations to persons in custody without being
called on to do so by the [detention facilities’] personnel.
3. The [first applicant] benefited from
examinations, specialist consultations, laboratory tests and treatment in Central Hospital fully and according to the approved standards.
4. The deterioration of [his] health and the
complications are attributable to the delay in his application for medical care
after testing HIV-positive, as well as the severity of the main disease, which
triggered irreversible processes in [his] organism.”
On 23 March 2009 the second applicant again
complained to the Bakhchysaray Prosecutor. She referred, in particular, to the
allegedly unjustified conclusion of the infectious disease specialist of 13 June
2008, according to which her son had not required urgent hospitalisation at
that time (see paragraph 27 above).
On 31 March 2009 the Bakhchysaray Prosecutor
refused to institute criminal proceedings against the police or the Central Hospital’s staff, finding the second applicant’s complaint to be unsubstantiated.
On 3 April 2009 the Bakhchysaray Prosecutor
quashed the decision of 31 March 2009 as further investigation was required,
which was to include the following measures: questioning of the second
applicant, the ITT staff, and the Central Hospital doctors concerned.
On 4 May 2009 the second applicant was
questioned by the prosecutor. She submitted that her son’s health had started
to deteriorate drastically in March 2008 and that he had not received prompt
and adequate medical treatment. According to her, the administration of the
detention facilities had merely called for an ambulance on several occasions. She
insisted on the seizure and examination of all the medical documentation
regarding her son - from the ITT, the SIZO, the Central Hospital and Hospital
no. 7 - with a view to an evaluation of his medical needs and the actual
response to them from November 2007.
On 25 May 2009 the Bakhchysaray Prosecutor
refused to open criminal proceedings against the police or the Central Hospital’s staff, on account of lack of corpus delicti in their actions. He
relied, in particular, on the conclusions of the Ministry of Public Health’s
commission (see paragraph 59 above), as well as statements by police
officers and doctors.
On 18 August 2009 the Bakhchysaray Court upheld
that decision. It noted that the first applicant had himself raised no
complaints against the police or medical staff. Furthermore, it appeared that
as soon as the authorities had become aware of his HIV status they had provided
him with adequate medical treatment.
On 13 October 2009 the Court of Appeal of the
Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the ruling
of 18 August 2009 and allowed the second applicant’s appeal. It criticised
the investigation, in particular, for its failure to give any consideration to
the first applicant’s state of health and the medical assistance, if any, provided
to him in detention from 20 November 2007 to early June 2008. Furthermore, the
appellate court noted that the impugned ruling had been delivered by the
first-instance court in the second applicant’s absence and without any proof
that she had been duly notified of the hearing. It remitted the case to the Bakhchysaray Court.
On 23 October 2009 the First Deputy Minister of
Public Health sent a letter to the Government Agent, in reply to the latter’s
enquiry following the communication of the application to the Government by the
Court (see also paragraphs 35, 44 and 48 above). It contained the following
conclusions:
“1. The reasons for the deterioration of the [first
applicant’s] health and the complications in the development of [his] disease
were as follows: the delayed application of [the first applicant] to [the Aids
Centre] for specific medical assistance (since 2005), the seriousness of the main
disease (Aids), and the irregularities in his antiretroviral treatment (there
were refusals [on his part] to take the medication).
2. The death of the [first] applicant is not related
to his medical treatment or the conditions in the medical facilities where he
was held. It was caused by the gravity of the main disease, which triggered
irreversible processes in [his] organism.”
On 17 December 2009 the Bakhchysaray Court
quashed the decision of 25 May 2009 (see paragraph 64 above) and remitted the
case to the Bakhchysaray Prosecutor for additional investigation.
On 19 August 2010 the Bakhchysaray Prosecutor
ordered a forensic medical examination with a view to responding to the
following questions:
(1) Did the Central Hospital’s therapist
establish correct diagnoses in respect of the first applicant on 3 June 2008
(for details see paragraph 20 above)?
(2) Were the diagnoses established by the
infectious disease specialist on 5 June 2008 (for details see paragraph 22
above), as well as his conclusion that the first applicant did not require
urgent hospitalisation, correct?
(3) Given the diagnoses established on 5 June
2008, did the first applicant indeed not require urgent hospitalisation and could
be detained in the ITT or the SIZO?
(4) Did the Central Hospital’s
doctors prescribe correct medical treatment for the first applicant?
(5) Did the Central Hospital’s doctors act
correctly in ordering the laboratory tests for the first applicant (blood and
urine analyses, a sugar test, and chest X-ray) only on 13 June, and not on 3 or
5 June 2008?
(6) On 18 June 2008, following a repeated enquiry
by the Bakhchysaray police as to the need for the first applicant to be
hospitalised, the Chief Doctor of the Infectious Diseases Department of the
Central Hospital issued a note stating that the first applicant did not require
urgent hospitalisation. Did the doctor assess the seriousness of the first
applicant’s condition correctly? Were her conclusions correct?
(7) Was
it lawful on the part of the medical staff of Hospital no. 7 to discharge the
first applicant on 18 July 2008, given that his mother’s request for him to be
discharged did not contain any indication that she had been warned about the
possible negative consequences?
(8) Were
the actions of the medical staff in compliance with the legislation? Was there
any causal link between the actions of the police and the medical staff and the
death of the first applicant?
On 26 November 2010 the Crimea Republic Bureau
for Forensic Medical Examinations completed its expert report.
Referring to the absence of medical
documentation regarding the first applicant’s examination on 3 June 2008, it
found it “extremely difficult” to answer question (1).
As to questions (2) and (3), the experts
concluded that the diagnoses established by the infectious disease specialist
on 5 June 2008 had not been based on a thorough examination of the first
applicant and had not reflected the seriousness of his condition, in
particular, the fever and the haemodynamic parameters. The experts concluded
that the doctor’s finding that the first applicant’s urgent hospitalisation was
not required on 5 June 2008 did not correspond to the diagnoses established.
They noted that he had been diagnosed, in particular, with pneumocystis
pneumonia, which would alone have warranted his urgent hospitalisation for
in-patient medical treatment. The doctor’s prescription of antibacterial and
antifungal medication for the first applicant was found to be correct (this was
apparently the reply to question (4), which was not specified).
In reply to question (5), the experts found that
the doctors’ decision of 13 June 2008 on the necessity of further laboratory
examinations complied with the applicable medical standards. They noted that
such laboratory tests had already been carried out on 4 June 2008 (from the
documents in the case file it appears that the correct date was 3 June 2008 -
see paragraph 20 above), but had needed to be further verified.
The expert commission replied to question (6)
that at the time of his examination on 18 June 2008 the first applicant had
required urgent hospitalisation and in-patient medical treatment.
As regards questions (7) and (8), the experts
noted that they were not competent to make a legal assessment of the doctors’
actions. Given the absence of an autopsy report, the commission found it
impossible to determine the cause of the death of the first applicant or to
establish whether there was a causal link between the time of his
hospitalisation for specialised treatment and his death.
On 27 December 2010 the Bakhchysaray Prosecutor
instituted a criminal investigation into the failure of the Central Hospital’s doctors to comply with their professional obligations. This decision was
mainly based on the expert commission’s findings of 26 November 2010. It
stated, in particular, as follows:
“The prosecutor’s investigation has collected sufficient
evidence of inadequate compliance by the medical officials with their
professional duties due to negligence. The delayed hospitalisation and,
accordingly, the delayed provision of medical assistance to [the first
applicant] contributed considerably to the deterioration of his health, which
amounted to a grave consequence for him.”
There is no information in the case file on any further developments
in this investigation or its outcome.
On 29 April 2011 the Bakhchysaray Prosecutor
delivered a decision refusing to institute criminal proceedings against the
staff of the ITT or the SIZO in connection with the medical assistance provided
to the first applicant. Referring to the medical records of 20 November and
2 December 2007, 10 January, 10 and 18 February and 28 May 2008, as
well as later medical documentation, the prosecutor did not discern anything
criminal in the actions of the administration of the detention facilities.
On 9 August 2011 the Bakhchysaray Court upheld
that decision having dismissed the second applicant’s complaint to that regard.
On 22 September 2011 the Crimea Court of Appeal
quashed the ruling of the first-instance court and remitted the case back to it
for fresh examination.
On 16 November 2011 the Bakhchysaray Court again
rejected the second applicant’s complaint.
On 13 March 2012 it however reconsidered its
position, apparently after a repeated complaint from the second applicant. The Bakhchysaray Court quashed the prosecutor’s ruling of 29 April 2011 and remitted the case
for additional investigation. It noted that the investigation undertaken only indirectly
concerned the ITT personnel and did not concern at all the SIZO administration or
medical staff. Moreover, the SIZO personnel whose duty was to respond to the
first applicant’s complaints had not even been identified. The Bakhchysaray Court also observed the lack of information in the file as regards any
record-keeping of the first applicant’s health-related complaints or showing
the absence of such complaints during his detention.
The Court has not been made aware of any further
developments.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Rules on Medical and Sanitary Care in
Detention Centres and Penitentiaries, approved by Decree no. 3/6 of 18 January
2000 of the State Department for the Enforcement of Sentences, stipulate that
medical assistance to HIV-infected persons is to be provided on the same basis
as to everybody else (paragraph 4.3.4). The Rules also contain recommendations
stating that accessible, informative and supportive counselling should be
available before and after HIV-testing (annex 28 to paragraph 4.3.4).
The relevant provisions of Decree No 186/607 of
15 November 2005 of the Ministry of Health and the State Department for the
Enforcement of Sentences on the Antiretroviral Treatment of Persons with HIV/Aids
Detained in Prisons and Pre-Trial Detention Centres are summarised in the case
of Yakovenko v. Ukraine (no. 15825/06, §§ 49-52, 25 October 2007).
Article 18 of the Pre-trial Detention Act (1993)
sets out rules governing the use of security measures, including the use of
handcuffs. Prison officers are entitled to use force and special equipment,
including unarmed combat, handcuffs and truncheons, with a view to suppressing
physical resistance, violence, outrage (безчинства)
and opposition to the lawful directions of the authorities of the detention
facility, when other means of achieving a legitimate objective have proved
ineffective. The type of security measure and the time and manner of its use
depend on the particular circumstances of the case and the personality of the
detainee.
Article 140 § 1 of the Criminal Code penalises medical
negligence which has led to grave consequences for the patient by “debarring
from the holding of certain offices or pursuing certain activities” for a term
of up to five years, or by correctional work for up to two years, or by
restriction or deprivation of liberty for the same term.
III. RELEVANT INTERNATIONAL MATERIALS
The relevant extracts from the third General
Report [CPT/Inf (93) 12] of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as
follows:
“a. Access to a doctor
...
35. A prison’s health care service should at least
be able to provide regular out-patient consultations and emergency treatment
(of course, in addition there may often be a hospital-type unit with beds). ...
Further, prison doctors should be able to call upon the services of
specialists. ...
Out-patient treatment should be supervised, as appropriate, by
health care staff; in many cases it is not sufficient for the provision of
follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital
service should be available, in either a civil or prison hospital. ...
37. Whenever prisoners need to be hospitalised or
examined by a specialist in a hospital, they should be transported with the
promptness and in the manner required by their state of health.”
b. Equivalence of care
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
guidelines of the World Health Organisation (“WHO”) on antiretroviral
therapy for HIV infection in adults and adolescents can be found in the
judgment in the case of Kozhokar v. Russia, no. 33099/08, §§ 77-79, 16 December 2010.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE
CONVENTION IN RESPECT OF THE FIRST APPLICANT
Both the first applicant, while still alive, and
the second applicant, in maintaining her son’s application and joining the case
on her own behalf after his death, complained that the State had failed to
protect his health, physical well-being and life, contrary to Articles 2
and 3 of the Convention. The second applicant further complained under
Article 3 of the Convention about her son’s handcuffing in hospital.
Lastly, she complained that the domestic investigation into his death had been
ineffective.
Articles 2 and 3 of the Convention, relied on by
the applicants, read as follows in so far as relevant:
Article 2.
“1. Everyone’s right to life shall be protected by
law.”
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
1. Victim status
The Court notes
at the outset that the second applicant may claim to be a victim within the
meaning of Article 34 of the Convention of the violations alleged by and on
behalf of her late son under Articles 2 and 3 of the Convention (see Renolde
v. France, no. 5608/05, § 69, 16 October 2008).
2. Exhaustion of domestic remedies as regards the
medical care provided to the first applicant and his death
The Government argued that the above complaints
were premature. They noted, in particular, that the criminal investigation
(instituted on 27 December 2010) regarding the medical assistance provided
to the first applicant by the Central Hospital’s doctors had not yet been
completed. The Government further observed that - as of the date of their
observations - the second applicant had not challenged the decision of the
Bakhchysaray Prosecutor of 29 April 2011 refusing to institute criminal proceedings
against the staff of the ITT and the SIZO in connection with the medical care
provided to the first applicant during his detention in those facilities.
The second applicant submitted that after the
domestic authorities had dismissed her son’s numerous requests for release and
for specialised medical treatment, which he had raised in an attempt to save
his life, there remained no effective domestic remedies for her to exhaust
after his death. She further expressed the view that, in any event, the
domestic investigation into the circumstances of the first applicant’s death
had been slow and ineffective. The second applicant therefore considered it
pointless to await its completion.
As regards the rule of exhaustion of domestic
remedies, the Court emphasises that it must be applied with some degree of
flexibility and without excessive formalism. The Court has already held on a
number of occasions that this rule is neither absolute nor capable of being
applied automatically; for the purposes of reviewing whether it has been
observed, it is essential to have regard to the circumstances of the individual
case (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports
of Judgments and Decisions 1996-IV, and Aksoy v. Turkey, 18
December 1996, §§ 53-54, Reports 1996-VI). The Court looks, in
particular, whether the applicant did everything that could reasonably be
expected in order to exhaust available domestic remedies (see Merit v. Ukraine, no.
66561/01, § 58, 30 March 2004).
The Court observes that the Government’s
objection in the present case raises issues which are inextricably linked to
the question of the effectiveness of the domestic investigation into the first
applicant’s death. Given the second applicant’s complaint about the alleged
ineffectiveness of the investigation in question, the Court would normally join
this objection to the merits of the aforementioned complaint (see, for example,
Matushevskyy and Matushevska v. Ukraine, no. 59461/08, § 66, 23 June 2011). However, the
particular circumstances of this case call for a different approach.
It is noteworthy that, in assessing the
effectiveness of a domestic remedy for a complaint under Articles 2 and 3 of
the Convention with regard to lack of sufficient care for an applicant
suffering from an illness in detention, the Court considers that a decisive
question is whether that remedy can bring direct and timely relief. Such a
remedy can, in principle, be both preventive and compensatory in nature. Where
the applicant has already resorted to either of the available and relevant remedies,
considering it to be the most appropriate course of action in his or her
particular situation, the applicant should not then be reproached for not
having pursued an alternative remedial course of action (see, mutatis
mutandis, Melnik v. Ukraine, no. 72286/01, §§ 68 and 70, 28 March
2006).
. The Court observes that the parties
are in dispute as to when the authorities became aware of the first applicant’s
HIV status. It will deal with this particular issue later, when assessing the
merits of the case. In order to establish whether the rule of exhaustion of
domestic remedies has been respected, it suffices for the Court to note the numerous
requests for release on health grounds lodged by the first applicant in June
2008 with the court dealing with his criminal case. Those requests, in the
Court’s view, clearly voiced the first applicant’s fears for his life (see and
compare with Dybeku v. Albania, no. 41153/06, § 28, 18 December
2007, and Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 54, 22 November 2011).
In other words, at the most pertinent time, when
the first applicant was still alive and could personally care for his
well-being, he did everything reasonable, at least from early June 2008
onwards, to alert the relevant authorities to his progressing HIV infection and
the concomitant diseases, seeking preventive remedial action for the grievances
set out in the present application. In such circumstances, it would be wholly
inappropriate, from the point of Article 35 § 1 of the Convention, to reproach
the second applicant for not having retrospectively pursued any compensatory
remedy by seeking completion of the criminal investigation and getting redress
for the State’s failure to protect her son’s health and life (see Makharadze
and Sikharulidze v. Georgia, cited above,
§ 55).
The Court therefore considers that the first
applicant sufficiently pursued a preventive domestic remedy for the exhaustion
requirement to be complied with.
Accordingly, the Court dismisses this objection
by the Government without joining it to the merits of the complaint about the
effectiveness of the domestic investigation into the first applicant’s medical
treatment and death.
3. Exhaustion of domestic remedies as regards the
first applicant’s handcuffing in hospital
The Government submitted that the applicants
could have, but failed to, complain about the first applicant’s handcuffing to
the prosecuting authorities or courts. The Government therefore expressed the
view that they could not be regarded as having exhausted the available domestic
remedies before bringing this complaint to the Court, as required by
Article 35 § 1 of the Convention.
The second applicant disagreed.
The Court notes that, as can be seen from the
case-file materials, the second applicant did complain about her son’s
handcuffing to the Chief of the Bakhchysaray Police Department and to the
Bakhchysaray Prosecutor (see paragraph 49 above). The first applicant’s lawyer
also raised this issue before the domestic authorities (see paragraph 51
above). These complaints, however, produced no effect.
The Court therefore concludes that the
applicants took sufficient steps at the domestic level to bring this complaint
to the attention of the national authorities (see Sylenok and
Tekhnoservis-Plus v. Ukraine, no. 20988/02, § 76, 9 December 2010). Moreover, it appears that the first applicant’s
handcuffing in hospital constituted a practice officially condoned or
tolerated by the guards’ supervisors (see, for a similar situation, Okhrimenko
v. Ukraine, no. 53896/07, § 94, 15
October 2009, and, for an example to the contrary, Tsygoniy v.
Ukraine, no. 19213/04, § 51, 24 November 2011).
Accordingly, the Court also rejects this
objection by the Government.
4. Otherwise as to admissibility
The Court considers that the above complaints (see
paragraph 89 above) are not manifestly ill-founded within the meaning of Article
35 § 3 (a) of the Convention. It further finds that they are not
inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Scope of the issues for consideration
The Court notes that in previous cases where a
death occurred in detention and the deceased’s relatives complained about the
lack or inadequacy of medical care prior to the death, relying on both Articles
2 and 3 of the Convention, it examined that complaint primarily from the
standpoint of Article 2 (see Tarariyeva v. Russia, no. 4353/03, § 68,
ECHR 2006-XV (extracts)), and Kats and Others v. Ukraine, no.
29971/04, § 131, 18 December 2008).
. In cases where the applicants
referred to both the aforementioned provisions in respect of allegedly inadequate
medical assistance available to them in detention, but where there was no
death, the Court examined the complaint under Article 3 of the Convention (see,
for example, A.B. v. Russia, no. 1439/06, § 114, 14 October 2010).
The present case is, however, different from
any of the situations described above. The Court notes that the first applicant
died two weeks after his release from detention following specialised treatment
in a civil hospital.
The Court observes that the applicants’
complaints, which they raised with reference to both Articles 2 and 3 of the
Convention, concern several specific issues, namely
(a) whether adequate medical assistance was
available to the first applicant during his detention in the ITT and the SIZO;
(b) whether the Central Hospital’s doctors
provided him with medical care which was prompt and which adequately addressed
his deteriorating state of health;
(c) whether the first applicant’s handcuffing in
hospital amounted to inhuman or degrading treatment;
(d) whether the authorities can be regarded as
having discharged their obligation to protect the first applicant’s life; and
(e) whether there was an effective domestic
investigation into the circumstances of his death.
In view of the complex issues to be considered,
the Court finds that it must assess each one of them separately: the three
first-mentioned ones - in the context of Article 3 of the Convention; and,
given the alleged causal link and contributory nature to the first applicant’s
death, also assess them jointly in considering the complaints under Article 2
of the Convention (see Bekirski v. Bulgaria, no. 71420/01, § 124, 2 September 2010).
2. Medical care in the detention facilities
(a) The parties’ submissions
The first applicant complained that the
administration of the ITT and the SIZO had failed to respond in a timely and
adequate manner to the deterioration of his health in detention. He submitted
that, starting from early March 2008 his health sharply deteriorated. Namely,
he allegedly had constant fever of 39-40ºC and could not eat because of serious
digestion disorders. Instead of ensuring that he received comprehensive medical
examinations and treatment, the administration of the detention facilities had
allegedly confined itself to calling an ambulance on several occasions.
Referring to the special medical monitoring of
persons with HIV infection, the second applicant submitted that the health-care
establishments, law-enforcement authorities and the Department for Enforcement
of Sentences must have been aware of the HIV-positive status of her son.
Furthermore, she noted that he had informed the investigator of his health
condition immediately after his placement in police custody on 20 November
2007.
The second applicant emphasised that at the
time of his placement in detention in November 2007 her son had been in good
health. His HIV-positive status had not in fact manifested itself then as
having any further negative consequences for his health. Accordingly, the fact
that the first applicant had not registered for medical monitoring at the Aids
Centre could not be regarded as having absolved the authorities who were
holding him in detention from their duty to provide him with medical treatment
once it became necessary with the deterioration of his health in March 2008.
The Government contested the above arguments.
They noted that the first applicant had never himself sought medical monitoring
or any assistance in respect of his HIV infection while at liberty. Moreover,
during his detention he had concealed his HIV status from the authorities. The medical
staff at the detention facilities could not therefore be reproached for not
applying a coherent strategy to the first applicant’s treatment in respect of
the HIV infection, as they did not know about it.
(b) The Court’s assessment
The Court notes the dispute between the parties
as to when the administration of the detention facilities in which the first
applicant was detained became aware of his HIV status. Consequently, the Court
will begin its examination of the applicants’ complaint regarding the alleged
lack of timely and adequate medical care available to the first applicant in
those detention facilities by establishing this pertinent fact.
(i) Establishment of facts
In the absence of the applicants’ allegations
or any other indication to the contrary, the Court considers it an established
fact that the first applicant himself became aware of his HIV-positive status
in February 2006 (see paragraphs 8, 21 and 59 above).
It is also common ground between the parties
that he had not sought any medical treatment in that regard before he was
detained.
As further agreed by both parties, the first
applicant felt well at the time of his placement in detention on 20 November
2007.
The question arises whether and when thereafter
he informed the administration of the ITT and/or the SIZO of his HIV-positive
status.
According to the second applicant, her son
immediately informed the investigator of his condition. The Court notes,
however, that this statement is not supported by any evidence. To the contrary,
it appears to be refuted by the first applicant’s own written statement of
20 June 2008, in which he admitted that he had concealed his HIV status
from the authorities “for understandable reasons” (see paragraph 36 above).
Neither does the Court see any indication in
the case file that the authorities might have received this information from
any other source like, for example, from the second applicant who had
apparently herself remained unaware of her son’s condition until early June
2008 (see paragraph 21 above, and, for the case-law to compare, see Kats and
Others v. Ukraine, cited above, §§ 33 and 106).
Furthermore, the Court does not lose sight of
the records of the first applicant’s medical examinations of 31 May and 3 June
2008, from which it can infer that the first applicant, surprisingly, remained
silent about his HIV status even before the doctors who examined him.
Lastly, given the confidentiality requirements
inherent in the medical monitoring of persons with the HIV-positive status, the
Court dismisses the second applicant’s argument that the authorities must have been
aware her son was HIV-positive merely because the Aids Centre had earlier
diagnosed him as such.
In sum, the Court is inclined to agree with the
Government’s account of the events, according to which the first applicant did
not disclose his HIV status to the authorities. The Court therefore accepts
that the authorities became aware of his HIV infection only on 5 June 2008,
when he was diagnosed with that infection after an examination in the Central Hospital (see paragraph 22 above).
(ii) Examination of the complaint
The Court emphasises that Article 3 of the Convention imposes an obligation on the State to
ensure, given the practical demands of imprisonment, that the health and
well-being of a prisoner are adequately secured by, among other things,
providing him with the required medical assistance
(see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI).
In order to establish whether an applicant
received the requisite medical assistance while in detention, it is crucial to determine whether the State authorities
provided him with the minimum scope of medical supervision for the
timely diagnosis and treatment of his illness (see Popov v. Russia, no.
26853/04, § 211, 13 July 2006, and Mechenkov v. Russia, no. 35421/05,
§ 102, 7 February 2008).
In other words, the Court must determine
whether during his detention an applicant needed regular medical care, whether
he was deprived of it as he claimed, and if so whether this amounted to inhuman
or degrading treatment contrary to Article 3 of the Convention (see Farbtuhs v. Latvia, no.
4672/02, § 53, 2 December 2004, and Sarban v. Moldova,
no. 3456/05, § 78, 4 October 2005).
One of the important factors for such an
assessment is a sharp deterioration in a person’s state of health in detention
facilities, which inevitably casts doubts as regards the adequacy of medical
care available therein (see Farbtuhs v. Latvia, cited above, § 57, and Khudobin
v. Russia, no. 59696/00, § 84, ECHR 2006-XII (extracts)).
In establishing the scope of the medical
supervision required and provided in each particular case, the Court must have
regard to the medical documents submitted by the parties (see Popov v.
Russia, cited above, ibid.).
The Court reiterates in this connection that
distribution of the burden of proof is intrinsically linked to the specificity
of the facts, the nature of the allegation made and the Convention right at
stake (for the principle-setting case-law see Nachova and Others v. Bulgaria
[GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII; and, for
the application of this principle in the context of complaints on inadequacy of
medical care in detention, see Štrucl and others v. Slovenia, nos.
5903/10, 6003/10 and 6544/10, § 65, 20
October 2011).
The Court notes that information about
conditions of detention, including the issue of medical care, falls within the
knowledge of the domestic authorities. Accordingly, applicants might experience
difficulties in procuring evidence to substantiate a complaint in that
connection (see Vladimir Vasilyev v. Russia, no. 28370/05, § 66, 10 January 2012). What is expected from
applicants in such cases is to submit at least a detailed account of the
facts complained of (see Visloguzov v. Ukraine, no. 32362/02, § 45,
20 May 2010). The burden of proof is then shifted to the Government to provide
explanations and supporting documents.
Thus, an ample medical file proving constant
medical supervision and adequate medical care might refute an applicant’s view
regarding the medical care at his disposal (see Pitalev v. Russia, no. 34393/03, § 55, 30 July 2009). Conversely, the
Government’s failure to provide pertinent medical documents casts doubts as
regards the availability of adequate medical supervision of and assistance to
the applicant in detention (see, mutatis mutandis, Petukhov v.
Ukraine, no. 43374/02, § 96, 21 October 2010).
. Turning to the present case, the
Court notes that the applicants made quite specific submissions regarding the
deterioration of the first applicant’s health from March 2008. They further
alleged that the medical response on the part of the detention facilities had
been limited to sporadic ambulance calls (see paragraphs 17 and 112 above).
. It is true that they did not submit
any documentary evidence in support of those allegations. At the same time the
Court does not lose sight of the second applicant’s efforts to collect such
evidence. Thus, in the course of the domestic investigation into the death of
her son she sought access to and examination of his complete medical file from
the detention facilities. That request was never granted and this documentation
was not made available to the second applicant or to the domestic prosecution
authorities (see paragraphs 63 and 81 above).
. Accordingly, it was for the
Government to submit the aforementioned medical file detailing the first
applicant’s actual medical needs during his detention and the medical response
to them.
. The Court notes, however, that not a
single medical document was submitted to it by the Government regarding the
first applicant’s detention between February and May 2008.
In such circumstances the Court finds itself in
a position to infer from the Government’s failure to submit copies of any
relevant medical documents that the first applicant did not receive adequate
medical assistance for his deteriorating health in the ITT and the SIZO, even
assuming that he had concealed his HIV status from the authorities (see, mutatis
mutandis, Mechenkov v. Russia, cited above, § 110).
Accordingly, there has been a violation of
Article 3 of the Convention in this regard.
3. Medical assistance in the Central Hospital
(a) The parties’ submissions
The second applicant submitted that even after
her son had been sent for examination to the Central Hospital (a civil
health-care establishment), its doctors unjustifiably delayed his
hospitalisation and specialised treatment, and this irreversibly undermined his
prospects of recovery.
The Government disagreed. Referring to the case
of Okhrimenko v. Ukraine (cited above, § 71), they contended that the Court was not in a position to
speculate on the adequacy of medical treatment provided by civil doctors.
(b) The Court’s assessment
The Court notes that the hospital in question
was a public institution, the acts and omissions of its medical staff being
therefore capable of engaging the responsibility of the respondent State under
the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71,
ECHR 2004-II).
This is, in any event, not crucial as at the
time the first applicant remained in detention and thus under the full control
of the authorities, which were obliged to account for his health and to provide
him with adequate medical care.
The Court agrees with the Government that it is
not its task to assess the medical treatment provided by civil doctors.
At the same time, it notes that the domestic
authorities themselves acknowledged that the medical assistance provided to the
first applicant by the Central Hospital’s doctors in June 2008 could not be
regarded as timely and adequate. Specifically, the Crimea Bureau for Forensic
Medical Examinations stated in its report of 26 November 2010 that at
least on two occasions, on 5 and 18 June 2008, the Central Hospital’s doctors
underestimated the seriousness of the first applicant’s condition and denied
him the urgent hospitalisation which he required (see paragraphs 69, 70-72 and
74 above, and, for the case-law to compare, see Geppa v. Russia,
no. 8532/06, § 82, 3 February 2011).
The Court has no reasons to question those
findings.
It therefore concludes that there has been a
violation of Article 3 of the Convention regarding this particular aspect as
well.
4. Handcuffing in hospital
(a) The parties’ submissions
The second applicant complained that her son
had been handcuffed to his bed in the hospital round-the-clock without reason,
which had exacerbated his suffering.
The Government submitted, with reference to the
letter from the Ministry of Health of 23 October 2009 (see paragraph 44 above),
that the first applicant had only been handcuffed on the occasions he was
escorted outside his hospital room and during any visits to him. They therefore
considered that this security measure had been applied reasonably.
(b) The Court’s assessment
The Court notes that the second applicant’s
allegation about the handcuffing of her son during his treatment in the Central Hospital from 20 to 26 June 2008 is supported by the photos submitted by her
(see paragraph 35 above).
As to his stay in Hospital no. 7 from 26 June
to 18 July 2008, it appears from the letter of the Ministry of Health of 23 October
2009, cited by the Government, that according to the hospital management the
first applicant was handcuffed during that period too. This implies, in the
Court’s opinion, handcuffing for most of the time, if not all the time, rather
than on an occasional basis, as the Government interpreted it to mean.
The Court further observes that although the
Chief of the Bakhchysaray Police - to whom the second applicant complained
about her son’s handcuffing - dismissed her complaint on 15 July 2008,
referring to the first applicant’s imminent release, he did not deny in
principle that handcuffing had been applied (see paragraph 50 above).
In sum, the Court considers it to be
sufficiently established by the evidence at hand that the first applicant was
subjected to continuous handcuffing in hospital from 20 June to 18 July
2008.
It notes that handcuffing does not normally
give rise to an issue under Article 3 of the Convention where the measure has
been imposed in connection with lawful detention and does not entail the use of
force, or public exposure, exceeding what is reasonably considered necessary.
In this regard, it is important to consider, for instance, the danger of the
person’s absconding or causing injury or damage (see Raninen v. Finland,
16 December 1997, § 56, Reports 1997-VIII, and Henaf v. France,
no. 65436/01, §§ 50-53, ECHR 2003-XI).
In the present case there is no indication that
the first applicant ever behaved violently or attempted to escape. Furthermore,
it is not disputed by the parties that he was constantly guarded by police
officers while in hospital. Moreover, he suffered from severe immunosuppression
caused by his HIV status, as well as a number of concurrent illnesses (see
paragraph 43 above). No special medical qualifications were required in
order to understand how weak and ill he was. Thus, the prosecutor pursuing
criminal charges against the first applicant acknowledged on 24 June 2008 that
he was in a “critical health condition” (see paragraph 39 above). Nonetheless,
the police still considered it necessary to keep him handcuffed in hospital.
The handcuffing continued even after the Chief Doctor of Hospital no. 7
indicated to the Bakhchysaray Police Department on 2 July 2008 that the
first applicant was seriously ill and that he needed to be unrestricted in his
movements. In total, the first applicant remained handcuffed in hospital for
twenty-eight days.
The Court considers that this treatment could
not be justified by security reasons and, given the first applicant’s poor
state of health, is to be considered inhuman and degrading (see Tarariyeva
v. Russia, cited above, §§ 110 and 111).
There has therefore been a violation of Article
3 of the Convention in this regard too.
5. The State’s obligation to protect the first
applicant’s life
(a) The second applicant’s submissions
The second applicant maintained that her son
could have recovered and remained alive had the authorities provided him with
proper medical treatment in good time. She noted that, while HIV/Aids remained
incurable, there were ways to enhance the life of people with the disease.
According to her, her son was deprived of any such possibility owing to the
fact that he was detained and was therefore fully dependant on the authorities,
which, in her view, showed complete disregard for his life.
In addition to her arguments regarding the lack
of timely and adequate medical assistance available to the first applicant in
detention, the second applicant also referred to his continued detention after
the pronouncement of the judgment in his case on 4 July 2008, even though a
custodial sentence had not been imposed. She considered that by that measure
alone the authorities had put her son in a life-threatening situation.
The second applicant underlined that she was
not complaining about the unlawfulness of her son’s detention from the
standpoint of Article 5 of the Convention, but that she was referring to
it as an argument in support of her claim that the authorities had failed to
protect her son’s life.
She further noted that the first applicant’s
behaviour before his placement in detention in December 2007 was of no
relevance for the fatal outcome of his disease in August 2008, as he had felt
well while he had remained at liberty and had not required any particular
medical treatment at that stage. It was in detention that his health sharply
deteriorated, but remained untreated, which led to his death.
(b) The Government’s submissions
The Government denied any responsibility on the
part of the respondent State for the first applicant’s death. They imputed it
to his own behaviour. Firstly, the Government observed that the first applicant
had not himself sought any medical assistance for about two years prior to his
placement in detention. Secondly, they emphasised that he had concealed his
HIV-positive status from the authorities during his detention.
Reiterating the findings of the Ministry of
Health’s commission of 20 March 2009, the Government explained the
deterioration of the first applicant’s health and the ensuing complications by
his delayed application for medical care after having tested HIV-positive, as
well as by the severity of the main disease (see paragraph 59 above).
(c) The
Court’s assessment
The Court emphasises that the object and
purpose of the Convention as an instrument for the protection of individual human
beings requires that Article 2 be interpreted and applied so as to make its
safeguards practical and effective (see McCann and Others v. the United
Kingdom, 27 September 1995, §§ 146-147, Series A no. 324).
For a positive obligation of a State under
Article 2 of the Convention to arise, it must be established that the
authorities knew or ought to have known at the time of the existence of a real
and immediate risk to the life of an identified individual and that they failed
to take measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk (see Osman v. the United Kingdom,
28 October 1998, § 116, Reports 1998-VIII).
Turning to the circumstances of the present
case, the Court notes that the first applicant died two weeks after his release
from detention and a day after his voluntary discharge from a civil hospital
following about a month and a half of specialised in-patient treatment (see
paragraphs 42, 52 and 55 above). The Court also notes that his death was caused
by the HIV infection contracted at least two years prior to his placement in
detention, if not earlier, and that he did not disclose his HIV status to the
authorities (see paragraphs 7 and 125 above).
It is not the Court’s task to rule on matters
lying exclusively within the field of expertise of medical specialists and
establish whether the first applicant’s disease was treatable and whether,
accordingly, his death could have been averted (see, mutatis mutandis, Kozhokar
v. Russia, cited above, § 108). Instead,
in order to determine whether Article 2 of the Convention has been complied
with, the Court will focus on determining whether the domestic authorities did
everything which could reasonably have been expected of them under the
circumstances to protect the first applicant’s life.
Given that the first applicant did not disclose
his HIV-positive status, the Court considers that the authorities became aware
of it once that diagnosis was clinically established - that is, on 5 June 2008
(see paragraph 125 above).
As to the earlier deterioration of his health
in the detention facilities and the lack of prompt and adequate medical care
available to him there, in respect of which the Court has found a violation of
Article 3 of the Convention (see paragraphs 126-139 above), the Court considers
that it is not in a position to examine these issues from the standpoint of
Article 2 also, for the following reasons. Firstly, it does not appear that at
that stage the health of the first applicant had deteriorated to such an extent
that it could be considered life-threatening, and, secondly, the administration
of the detention facilities were not aware of his HIV status and the inherent
risks.
At the same time, the Court notes that on 5
June 2008 the Central Hospital’s doctors diagnosed the first applicant with HIV
infection at the fourth clinical stage, with several
concomitant diseases, such as pneumocystis pneumonia,
oropharynx-esophagus candidiosis and an ulcer (see paragraph 22 above). As was
later established by forensic medical experts, the diagnosis of neumocystis
pneumonia alone warranted the first applicant’s urgent hospitalisation (see
paragraph 72 above).
There were therefore, from 5 June 2008 onwards,
two key factors in place for the State’s positive obligation under Article 2 of
the Convention to come into play: firstly, the seriousness of the first
applicant’s health condition and, secondly, the knowledge of the authorities
about it.
Nonetheless, the seriousness of his condition was
underestimated and, as a result, his hospitalisation - already urgently
required on 5 June 2008 if not earlier - was delayed until 20 June 2008 (see
paragraphs 145-146 above).
The Court has already found a violation of
Article 3 of the Convention in that regard (see paragraph 147 above). It
further notes that, according to its case-law, a failure on the part of the
authorities to monitor a detainee’s condition or provide a detainee with medical
care in a life-threatening situation may lead to a breach of Article 2 (see Douglas-Williams
v. the United Kingdom (dec.), no. 56413/00, 8 January 2002, and, as
a more recent reference, Alimuçaj v. Albania, no. 20134/05, § 130, 7 February 2012).
Accordingly, it will take the aforementioned
omissions into account in making its conclusions under Article 2 of the
Convention too.
The Court next notes that the Bakhchysaray Court in charge of the first applicant’s trial turned a blind eye to the
extreme gravity of his condition even though this had been acknowledged even by
the prosecution. Thus, on 24 June 2008 the prosecutor informed the court that
there were no objections to the first applicant’s release and indicated that it
was necessary to deal with his request for release promptly on account of his
“critical condition”. However, the first applicant continued to be deprived of
his liberty, while in Hospital no. 7, even after the pronouncement of the
judgment of 4 July 2008, which imposed a fine only and not a custodial
sentence. He was released only on 18 July 2008 (see paragraphs 47 and 52
above).
There are three particular elements to be
considered in relation to the compatibility of an applicant’s health with his continued
detention: (a) the medical condition of the detainee, (b) the adequacy of
the medical assistance and care provided in detention, and (c) the advisability
of maintaining the detention measure in view of the state of health of the applicant
(see Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002-IX; Melnik
v. Ukraine, cited above, § 94; and Rivière v. France, no. 33834/03,
§ 63, 11 July 2006).
The Court notes that the first applicant’s
health was found to be more and more a cause for concern and to be increasingly
incompatible with detention (see and compare Dzieciak v. Poland, no. 77766/01,
§§ 100-101, 9 December 2008, in which the Court examined, in particular, the
issue of the applicant’s continuous detention from the standpoint of the State’s
obligation to protect his life). Furthermore, the first applicant posed no
danger to the public and his detention appears to have been not only
“inadvisable”, but particularly cruel in the circumstances (see, for a converse
example, Ceku v. Germany (dec.), no. 41559/06, 13 March 2007).
The Court does not lose sight of the fact that
at the time in question the first applicant was being held not in a detention
facility cell but in a civil hospital where he was undergoing specialised
in-patient treatment.
On the surface, that might appear to
counterbalance the above considerations against his detention. However, the
Court considers that this is not so given, in particular, the first applicant’s
continuous handcuffing in hospital amounting in itself, under the circumstances,
to his inhuman and degrading treatment (see paragraphs 150-157 above).
All in all, even if some of the above-mentioned
deficiencies would not alone have been sufficient for a finding of inadequate
discharge by the State of its positive obligation to protect the first
applicant’s health and life, the Court considers that their coexistence and cumulative
effect are more than enough in this regard.
Whether or not the authorities’ efforts could
in principle have averted the fatal outcome in the present case is not decisive
for this conclusion. What matters for the Court is whether they did everything
reasonably possible in the circumstances, in good faith and in a timely manner,
to try to save the first applicant’s life (see, mutatis mutandis,
Makharadze and Sikharulidze v. Georgia, cited above, § 74).
. The Court considers that this is not
the case given, in particular, the fact that the first applicant was
denied urgent hospitalisation, which he required, for over two weeks; that he
remained detained without any justification and while in a critical health
condition; and that he was subjected, contrary to doctors’ recommendations, to
continuous handcuffing which further exacerbated his health condition.
It follows that there has been a violation of
Article 2 of the Convention on account of the respondent State’s failure to
protect the first applicant’s life.
6. Domestic investigation regarding the first
applicant’s medical treatment and death
(a) The parties’ submissions
The second applicant maintained that there had
been no effective domestic investigation into the death of her son. She noted,
in particular, that the investigating authorities had never studied the
complete medical file of the first applicant from the detention facilities. Nor
had they questioned all the medical personnel involved. She also pointed out
that the decisions to terminate the investigation had been quashed as premature
or superficial on several occasions. At the same time, the shortcomings
indicated had never been rectified. She therefore contended that the
authorities had sought ways to deny any responsibility for the death of her son
instead of making genuine efforts to establish its reasons and punish those
responsible.
The Government maintained that the domestic
investigation into the first applicant’s death had been adequate.
(b) The Court’s assessment
The Court reiterates that where lives have been
lost in circumstances potentially engaging the responsibility of the State,
Article 2 of the Convention entails a duty for the State to ensure, by all
means at its disposal, an adequate response - judicial or otherwise - so that
the legislative and administrative framework set up to protect the right to
life is properly implemented and any breaches of that right are repressed and
punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR
2004-XII).
The system required by Article 2
must provide for an independent and impartial official investigation that
satisfies certain minimum standards as to effectiveness. The competent
authorities must act with exemplary diligence and promptness, and must initiate
investigations capable of, firstly, ascertaining the circumstances in which the
incident took place and any shortcomings in the operation of the regulatory
system and, secondly, identifying the State officials or authorities involved.
The requirement of public scrutiny is also relevant in this context (see, mutatis
mutandis, Kats and Others v. Ukraine, cited above, § 116).
In the present case, the second applicant
claimed that the death of her son had resulted from the lack of prompt and
adequate medical care provided to him by the ITT and the SIZO personnel, as
well as by the doctors of the Central Hospital.
The Court notes that the first applicant’s
health seriously deteriorated in detention and that the applicants raised the
complaints regarding the medical assistance provided to him, at least before
the administration of the detention facilities and the management of the Central Hospital, prior to the first applicant’s death. Thereafter, those grievances were
further brought to the attention of prosecuting authorities (see
paragraphs 33, 45 and 56 above).
The Court notes that the investigation was
closed and reopened several times and has lasted for over three and a half
years (calculated from August 2008 - see paragraphs 55-56). As a result, on 27 December
2010 criminal proceedings were instituted in respect of the Central Hospital’s
doctors. There is no information in the case file as regards the progress of
these criminal proceedings. As to the liability of the detention facilities’
staff, the investigation was re-opened on 13 March 2012 and is ongoing.
The Court cannot overlook the failure of the
investigating authorities to obtain the first applicant’s complete medical file
from the detention facilities where he had been detained, even though the
second applicant insisted on that pertinent measure and, moreover, the Crimea Court
of Appeal also found that it was necessary in its ruling of 13 October 2009 (see
paragraphs 63 and 66 above). This omission was also noted by the Bakhchysaray Court in its ruling of 13 March 2012. Furthermore, the Bakhchysaray Court pointed
out that the SIZO personnel in charge of handling the first applicant’s
health-related complaints had not even been identified (see paragraph 81
above). In the Court’s view, the failure to take such a basic investigative step,
which would have been expected at the very outset of the investigation had it
been genuinely aimed at establishing the truth, discloses its flagrant
deficiency.
It follows that the respondent State failed to
account sufficiently for the deterioration of the first applicant’s health and
his subsequent death.
This is a serious omission as, apart from
concern for respect of the rights inherent in Article 2 of the Convention in
each individual case, important public interests are at stake. Notably, the
knowledge of the facts and of possible errors committed in the course of
medical care are essential to enable the institutions and medical staff
concerned to remedy potential deficiencies and prevent similar errors (see Byrzykowski
v. Poland, no. 11562/05, § 117, 27 June 2006).
There has accordingly been a violation of
Article 2 of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION IN RESPECT OF THE SECOND APPLICANT
The second applicant additionally complained that,
as a result of the denial of prompt and adequate medical care to her son, his
subsequent death and the flawed domestic investigation into it, she had endured
mental suffering in breach of Article 3 of the Convention. The text of this
provision is provided in paragraph 90 above.
A. Admissibility
The Court considers that
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. Neither is it inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The second applicant submitted that, during
several months, she had witnessed her child dying in detention, at the age of
twenty-seven, without adequate medical care and subjected to permanent
handcuffing. She emphasised that, while being aware of the proximate end of his
life, she had found herself in a state of complete helplessness and despair,
being unable not only to save his life, but even to alleviate his suffering.
The second applicant referred to the cynical and indifferent attitude of the
domestic authorities, which had manifested itself, in particular, in the
continuous detention of her son even after he had been sentenced to a fine only
and after the prosecution had acknowledged his critical health condition and
had consented to his release. They had showed similar indifference, in her
view, by their formalistic approach to the investigation into the circumstances
of her son’s death.
Maintaining their assertion as to the absence
of any breach of Article 3 of the Convention in respect of the first applicant,
the Government considered that the second applicant’s complaint under this
provision about her own mental suffering was devoid of any grounds.
2. The Court’s assessment
The Court has never questioned in its case-law
the profound psychological impact of a serious human rights’ violation on the
victim’s family members. However, in order for a separate violation of Article
3 of the Convention to be found in respect of the victim’s relatives, there
should be special factors in place giving their suffering a dimension and
character distinct from emotional distress inevitably stemming from the
aforementioned violation itself. Relevant elements include the proximity of the
family tie and the way the authorities responded to the relative’s enquiries
(see, for example, Çakıcı v. Turkey, no. 23657/94, § 98, 8
July 1999, where this principle was applied in the context of enforced
disappearance; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium,
no. 13178/03, § 61, 12 October 2006, where the Court further relied on
this principle in consideration of a mother’s complaint about her suffering on
account of her five-year old daughter’s detention in another country; and M.P.
and Others v. Bulgaria, no. 22457/08, §§ 122-124, 15 November 2011, where
the respective complaint concerned suffering of the relatives of an abused
child).
In the cited cases the Court attached weight to
the parent-child bond. It also held that the essence of such a violation lay in
the authorities’ reactions and attitudes to the situation when it was brought
to their attention. The Court further emphasised that it was especially in
respect of this latter factor that a parent could claim directly to be a victim
of the authorities’ conduct (ibid.).
Another factor leading the Court to find a
violation of Article 3 of the Convention, in particular, in respect of
relatives of a victim of an enforced disappearance, was the continuous nature
of their psychological suffering (see, for example, Imakayeva v. Russia,
no. 7615/02, § 166, ECHR 2006-XIII
(extracts); and Luluyev and Others v. Russia, no. 69480/01, § 115,
ECHR 2006-XIII
(extracts)).
In sum, in such circumstances, Article 3
enjoins the authorities to react to the plight of the victim’s relatives in an
appropriate and humane way. On the other hand, in cases of persons who have
been killed by the authorities in violation of Article 2, the Court has held
that the application of Article 3 is usually not extended to the relatives on
account of the instantaneous nature of the incident causing the death in
question (see Yasin Ateş v. Turkey, no. 30949/96, § 135, 31
May 2005; Udayeva and Yusupova v. Russia, no. 36542/05, § 82, 21
December 2010; Khashuyeva v. Russia, no. 25553/07, § 154, 19 July
2011; and Inderbiyeva v. Russia, no. 56765/08, § 110, 27 March
2012).
. Turning to the present case, the
Court notes that, as soon as the second applicant became aware of the disease
of her son, who was in detention, she took every effort to save his life,
appealing to the hospitals, prosecution authorities and courts involved.
Nonetheless, the first applicant continued to be detained even after the
prosecution had agreed to his release given the gravity of his health condition
(see paragraphs 39-40 above). Neither was he released after the verdict had
been pronounced in his case with the penalty being limited to a fine and not
providing for any custodial sentence (see paragraph 47 above). His mother, the
second applicant, could only passively witness this in a state of complete
helplessness. Furthermore, her complaints about the underestimation of the
seriousness of her son’s condition were disregarded, even though later they
were found to be well-grounded (see paragraphs 33, 69 and 74 above). The Court
does not lose sight either of the second applicant’s fruitless efforts to get
the handcuffing of her son’s lifted during his stay in hospital (see paragraphs
49-50 above). Lastly, the Court observes that even after the death of the first
applicant, the authorities manifested an equally unacceptable attitude towards
the second applicant, in particular, by ignoring her requests to get access to
her son’s medical file (see paragraphs 63, 66 and 191 above).
. Overall, the Court discerns a number
of factors in the present case which, taken together, indicate a breach of the
second applicant’s rights under Article 3 of the Convention. Namely, it notes:
the parent-child bond between her and the first applicant; the activeness of
her efforts to save his life or at least to alleviate his suffering; the
cynical, indifferent and cruel attitude towards her appeals demonstrated by the
authorities both before the first applicant’s death and during its subsequent
investigation; the fact that the second applicant had to witness the slow death
of her son without being able to help him in any way; and, lastly, the duration
of her inherent suffering for about three months.
. In the light of the foregoing, the
Court considers that the second applicant has been a victim of inhuman
treatment.
. There has therefore been a violation
of Article 3 of the Convention in respect of the second applicant.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE
CONVENTION
The applicants complained that the delayed
hospitalisation of the first applicant, notwithstanding the interim measure
indicated to the Government under Rule 39 of the Rules of Court, had been in
breach of Article 34 of the Convention.
Article 34 of the Convention reads as follows:
“The Court may receive applications from any person,
non-governmental organisation or group of individuals claiming to be the victim
of a violation by one of the High Contracting Parties of the rights set forth
in the Convention or the Protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right.”
Rule 39 of the Rules of Court provides:
“1. The Chamber or, where appropriate, its President
may, at the request of a party or of any other person concerned, or of its own
motion, indicate to the parties any interim measure which it considers should
be adopted in the interests of the parties or of the proper conduct of the
proceedings before it.
2. Notice of these measures shall be given to the
Committee of Ministers.
3. The Chamber may request information from the
parties on any matter connected with the implementation of any interim measure
it has indicated.”
A. The parties’ submissions
The second applicant maintained that the
authorities had failed to comply with the interim measure.
The Government disagreed.
B. The Court’s assessment
1. General principles
Article 34 of the Convention requires Member
States not to hinder in any way the effective exercise of an applicant’s right
of access to the Court (see Mamatkulov and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, § 100, ECHR 2005-I).
The obligation in Article 34 not to interfere
with an individual’s effective exercise of the right to submit and pursue a
complaint before the Court confers upon an applicant a right of a procedural
nature - which can be asserted in Convention proceedings - distinguishable from
the substantive rights set out under Section I of the Convention or its
Protocols (see, for instance, Shamayev and Others v. Georgia and Russia,
no. 36378/02, § 470, ECHR 2005-III).
In Mamatkulov and Askarov (cited above,
§§ 104, 125 and 128), the Court held that the failure to comply with an interim
measure indicated under Rule 39 of the Rules of Court could give rise to a
violation of Article 34 of the Convention.
In Paladi v. Moldova ([GC], no.
39806/05, 10 March 2009) the Court stated:
“87. The Court reiterates that the obligation laid
down in Article 34 in
fine requires the Contracting States to refrain not only from
exerting pressure on applicants, but also from any act or omission which, by
destroying or removing the subject matter of an application, would make it
pointless or otherwise prevent the Court from considering it under its normal
procedure [...]. It is clear from the purpose of this rule, which is to ensure
the effectiveness of the right of individual petition [...], that the
intentions or reasons underlying the acts or omissions in question are of
little relevance when assessing whether Article 34 of the Convention was
complied with ... What matters is whether the situation created as a result of
the authorities’ act or omission conforms to Article 34.
88. The same holds true as regards compliance with
interim measures as provided for by Rule 39, since such measures are indicated
by the Court for the purpose of ensuring the effectiveness of the right of
individual petition ... It follows that Article 34 will be breached if the
authorities of a Contracting State fail to take all steps which could
reasonably have been taken in order to comply with the measure indicated by the
Court.
89. Furthermore, the Court
would stress that where there is plausibly asserted to be a risk of irreparable
damage to the enjoyment by the applicant of one of the core rights under the
Convention, the object of an interim measure is to preserve and protect the
rights and interests of the parties in a dispute before the Court, pending the
final decision. It follows from the very nature of interim measures that a
decision on whether they should be indicated in a given case will often have to
be made within a very short lapse of time, with a view to preventing imminent
potential harm from being done. Consequently, the full facts of the case will
often remain undetermined until the Court’s judgment on the merits of the
complaint to which the measure is related. It is precisely for the purpose of
preserving the Court’s ability to render such a judgment after an effective
examination of the complaint that such measures are indicated. Until that time,
it may be unavoidable for the Court to indicate interim measures on the basis
of facts which, despite making a prima
facie case in favour of such measures, are subsequently added to or
challenged to the point of calling into question the measures’ justification.
For the same reasons, the fact that the damage which an interim
measure was designed to prevent subsequently turns out not to have occurred
despite a State’s failure to act in full compliance with the interim measure is
equally irrelevant for the assessment of whether this State has fulfilled its
obligations under Article 34.
90. Consequently, it is not
open to a Contracting State to substitute its own judgment for that of the
Court in verifying whether or not there existed a real risk of immediate and
irreparable damage to an applicant at the time when the interim measure was
indicated. Neither is it for the domestic authorities to decide on the
time-limits for complying with an interim measure or on the extent to which it
should be complied with. It is for the Court to verify compliance with the
interim measure, while a State which considers that it is in possession of
materials capable of convincing the Court to annul the interim measure should
inform the Court accordingly (see, mutatis
mutandis, Olaechea
Cahuas v. Spain, no. 24668/03, § 70, ECHR 2006-X; Tanrıkulu
v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV; and Orhan
v. Turkey, no. 25656/94, § 409, 18 June 2002).
91. The point of departure for verifying whether the
respondent State has complied with the measure is the formulation of the
interim measure itself (see, mutatis
mutandis, the International Court of Justice’s analysis of the
formulation of its interim measure and actual compliance with it in LaGrand,
...). The Court will therefore examine whether the respondent State complied
with the letter and the spirit of the interim measure indicated to it.
92. In examining a complaint under Article 34
concerning the alleged failure of a Contracting State to comply with an interim
measure, the Court will therefore not re-examine whether its decision to apply
interim measures was correct. It is for the respondent Government to
demonstrate to the Court that the interim measure was complied with or, in an
exceptional case, that there was an objective impediment which prevented
compliance and that the Government took all reasonable steps to remove the
impediment and to keep the Court informed about the situation.”
2. Application of the above principles to the present
case
The Court notes that the respondent Government
were officially informed of the interim measure under Rule 39 on 17 June 2008
(Tuesday, a working day) by a fax message (see paragraph 29 above).
The contents of the interim measure included an
instruction to the domestic authorities to transfer the first applicant immediately
to a hospital for medical treatment. Despite becoming aware of the interim
measure at the latest on the evening of 17 June 2008, it was only on 20 June
2008 that the domestic authorities transferred the first applicant to a
hospital.
It follows that the interim measure was not
complied with for a period of three days.
The Court notes that the Government considered
this delay reasonable, without referring to any impediments which had prevented
their earlier compliance with it.
The Court however does not share this view. It explicitly
and clearly indicated that the first applicant’s hospitalisation had to be
immediate (see paragraph 29 above). It observes that an identically worded
interim measure, which it had indicated in the case of Yakovenko v. Ukraine
(no. 15825/06, 25 October 2007), had been implemented on the same day (§§ 3 and
22).
There appear no objective impediments or
difficulties, which might have prevented equally expedient compliance in the
present case.
The Court emphasises that it did not indicate
the necessity of the first applicant’s medical examination, but his “[immediate
transfer] to a hospital or other medical institution where he [could] receive
the appropriate treatment for his medical condition”. The authorities, however,
waited for one day and decided, on 18 June 2008, that no urgent hospitalisation
was required. In other words, instead of complying with the indicated interim
measure, they decided to re-evaluate its soundness. And, as it was later
acknowledged by the domestic authorities themselves, this re-evaluation was erroneous
(see paragraphs 74 and 145 above).
Accordingly, there was no acceptable
explanation for the domestic authorities’ failure to take immediate action to
comply with the interim measure (see, and compare with, Grori v. Albania,
no. 25336/04, §§ 185-195, 7 July
2009). Whether or not the three-day delay in fact caused the damage
which the interim measure was designed to prevent, is irrelevant for the Court’s
assessment (see Paladi v. Moldova, cited above, § 89).
The Court concludes the State failed to meet
its obligations under Article 34 of the Convention by not complying promptly
with the interim measure indicated by the Court on 17 June 2008.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The second applicant also complained under
Article 6 of the Convention about the alleged unfairness of the first applicant’s
trial.
. The
Court notes that the second applicant was not a party to the domestic
proceedings complained of. Consequently, she cannot claim to be a
victim, within the meaning of the Convention, of a violation of her rights
guaranteed therein. The Court therefore rejects this complaint as being
incompatible ratione personae with the Convention provisions, pursuant Article
35 §§ 3 (a) and 4 of the Convention.
Lastly, the second applicant complained about
the material conditions of her son’s detention in the ITT and the SIZO. She
raised this complaint for the first time in her reply to the Government’s
observations.
The Court notes that the first applicant’s
detention in the conditions complained of ended on 20 June 2008 (see paragraphs
14 and 34 above), whereas the respective complaint was lodged with the Court
after September 2009 (see paragraph 4 above), that is, more than six months
later (see Novinskiy v. Russia (dec.), no. 11982/02, 6 December 2007,
and Malenko v. Ukraine, no. 18660/03, § 40, 19 February 2009). It
follows that this complaint was introduced out of time and must be rejected
pursuant to Article 35 §§ 1 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. Damage
The second
applicant claimed 50,000 euros (EUR) for non-pecuniary damage associated with
the violations of Articles 2 and 3 of the Convention in respect of the
first applicant. She also claimed EUR 10,000 for non-pecuniary damage for the
violation of Article 3 of the Convention in respect of herself.
The Government contested these claims as
unsubstantiated and excessive. They also submitted that, if the Court decided
to award a just satisfaction in respect of some violations regarding the first
applicant, the second applicant should not automatically receive that award.
According to the Government, it ought to be distributed among all the eligible
heirs of the first applicant.
Taking into account the nature of the
violations found and ruling on an equitable basis, the Court considers it
appropriate to allow this claim in full. It thus makes the following awards
under this heading: EUR 50,000 in respect of the non-pecuniary damage suffered
by the first applicant, to be paid to the second applicant in her capacity as
his successor in the proceedings before the Court after his death; and
EUR 10,000 in respect of the non-pecuniary damage suffered by the second
applicant herself, to be paid to her in her personal capacity.
B. Costs and expenses
1. Legal fees
The second applicant also claimed 10,000
Ukrainian hryvnias (UAH) for legal fees (equal to EUR 900 at the time when her
claim was lodged). In support of this claim, she submitted a contract of legal
services rendered in the proceedings before the Court dated
5 June 2008, according to which she was to pay the lawyer,
Mr Lesovoy, UAH 10,000. That contract contained a handwritten receipt
note by Mr Lesovoy according to which he had received the stipulated amount
from the second applicant.
The Government considered that the second
applicant had failed to demonstrate that the costs claimed were reasonable and
had actually been incurred.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are reasonable
as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V).
It notes that in the present case the second
applicant was bound by and complied with her contractual obligations vis-à-vis
Mr Lesovoy, who represented her son and herself in the proceedings before the
Court.
The Court therefore considers that the
aforementioned requirements have been met in this case and awards this claim in
full.
2. Postal expenses
The second applicant also claimed UAH 262.69 (an
equivalent of about EUR 25) for postal expenses. In support
of her claim she submitted eight postal receipts in respect of her
correspondence with the Court.
The Government submitted that the second
applicant had failed to support her claim with documents.
Regard being had to the documents in its
possession, the Court considers it reasonable to grant this claim in full and
to award the second applicant EUR 25 under this heading.
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
1. Declares the complaints under Articles 2
and 3 of the Convention in respect of the first applicant and the complaint
under Article 3 in respect of the second applicant admissible and the remainder
of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention in respect of the inadequate medical care afforded
to the first applicant in the detention facilities;
3. Holds that there has been a violation of
Article 3 of the Convention in respect of the inadequate medical assistance
provided to the first applicant in the Central Hospital in June 2008;
4. Holds that there has been a violation of
Article 3 of the Convention in respect of the first applicant’s handcuffing in
hospital;
5. Holds that there has been a violation of
Article 2 of the Convention in respect of the authorities’ failure to protect
the life of the first applicant;
6. Holds that there has been a violation of
Article 2 of the Convention in respect of the lack of an adequate investigation
into the circumstances of the first applicant’s death;
7. Holds that there has been a violation of
Article 3 of the Convention in respect of the mental suffering of the second
applicant;
8. Holds that the State
failed to meet its obligations under Article 34 of the Convention by not
complying promptly with the interim measure indicated by the Court on
17 June 2008;
9. Holds
(a) that the respondent State is to pay the second applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following amounts, to be
converted into the national currency of the respondent State at the rate
applicable on the date of settlement, plus any taxes that may be chargeable to
the second applicant in respect of these amounts:
(i) EUR 50,000 (fifty thousand euros), payable to
the second applicant in her capacity as the first applicant’s successor in the
proceedings before the Court after his death;
(ii) EUR 10,000 (ten thousand euros), payable to
the second applicant in her personal capacity;
(iii) EUR 900 (nine hundred euros), plus any tax
that may be chargeable to the second applicant, in respect of costs and
expenses related to her legal representation;
(iv) EUR 25 (twenty-five euros), plus any tax that
may be chargeable to the second applicant, in respect of her postal expenses;
(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.
Done in English, and notified in writing on 14 March 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark
Villiger
Registrar President
