SEMENOVA v. RUSSIA - 11788/16 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment Inhuman treatment) (Substantive aspect) Viol...) [2017] ECHR 821 (03 October 2017)

In the case of Semenova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helen Keller, President,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 12 September 2017,

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

PROCEDURE

1. The case originated in an application (no. 11788/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Oksana Vyacheslavovna Semenova (“the applicant”), on 2 March 2016. After her death, her daughter, Ms Anna Kirillovna Semenova, expressed the wish on 9 September 2016 to pursue the application.

2. The applicant and her daughter were represented by Mr S. Petryakov, a lawyer practising in Kazan. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged that she had not received appropriate medical care in detention.

4. On 2 March 2016 the Court decided at the request of the applicant to apply Rules 39 and 41 of the Rules of Court (see paragraph 28 below).

5. On 6 September 2016 the application was communicated to the Government.

6. On 23 November 2016, after being informed of the applicant’s death, the Court lifted the interim measure indicated on 2 March 2016 and discontinued the application of Rule 41.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1980 and lived in St Petersburg until her arrest.

A. Conviction

8. On 6 February 2013 the applicant was arrested on suspicion of drug trafficking. She remained in detention throughout the ensuing investigation and trial.

9. On 28 March 2013 the Krasnogvardeiyskiy District Court of St Petersburg found her guilty and sentenced her to one year in prison. Regard being had to her previous convictions for similar offences, the applicant was ordered to spend four years and one month in a correctional colony.

B. The applicant’s medical treatment in detention

10. At the time of her arrest the applicant suffered from HIV and chronic hepatitis C.

11. She underwent a routine medical examination by a general practitioner on admission to her remand prison. Several days later, on 18 February 2013, she was examined by a gynaecologist, who diagnosed cervical erosion and carried out basic tests.

12. In late April 2013 the applicant was sent to correctional colony no. 2 in St Petersburg.

13. She had the necessary treatment for HIV and other illnesses in the correctional colony. She was examined by various doctors, including a gynaecologist. She consulted the latter on 6 and 22 May 2013 on account of a vaginal infection.

14. On 9 June 2015 the applicant complained of intense pain in the lower abdomen, which she had been experiencing for four months. A gynaecologist tested her for sexually transmitted diseases and prescribed treatment with hormones and painkillers.

15. Six days later the doctor examined her again and suggested that she might have developed cervical cancer and needed to go to hospital for an in-depth examination.

16. On 17 June 2015 the applicant, referring to “personal circumstances”, asked for the admission to hospital to be suspended. The doctor talked to her, insisting that she urgently needed to be admitted to hospital, but she refused.

17. A cervical smear test was carried out next day. It revealed cell pathology which resembled cervical cancer, requiring a histological examination to confirm the diagnosis.

18. On 21 July 2015 the applicant was admitted to Gaaza Prison Hospital in St Petersburg (“the prison hospital”). It appears that it was not licensed to provide healthcare services, although certain services for cancer patients were provided by St Petersburg City Cancer Hospital under a special agreement (see paragraph 42 below).

19. The applicant had a histological examination two days later, which confirmed cervical cancer. Local chemotherapy was prescribed.

20. On 22 September 2015 the custodial authorities asked a gynaecological cancer specialist to examine the applicant. The doctor noted that her cancer had progressed to such an advanced stage that it could not be cured by surgery. Radiotherapy was prescribed.

21. The applicant suffered from “unbearable pain” which ordinary painkillers could not alleviate. On 30 October 2015 the prison hospital’s medical board therefore authorised the use of narcotic pain relief.

C. Application for early release on medical grounds

22. In November 2015 the head of the prison hospital applied for the applicant’s early release on medical grounds.

23. At a hearing on 25 November 2015 before the Smolninskiy District Court of St Petersburg, the applicant’s doctor supported the application, stating that she was very ill, was in constant, severe pain, and that the prison hospital had no drugs to treat her. The drugs accessible in detention were unable to relieve the pain. He argued that if released the applicant would benefit from the wider range of painkillers available in civilian hospitals.

24. A representative of the detention authorities left the issue to the court’s discretion, only making positive comments about the applicant’s work while in detention and about her character.

25. The prosecutor in the case objected to the applicant’s release, stating that the detention facility could provide her with the requisite treatment.

26. The court dismissed the application, finding that the treatment she would receive in the prison hospital was similar to what she would get in a civilian one.

27. On 1 March 2016 the St Petersburg City Court quashed the decision of 25 November 2015 on appeal and remitted the case for fresh examination. No hearings were held.

D. Rule 39 request

28. By a letter delivered to the Court on 2 March 2016 the applicant asked to apply interim measures under Rule 39 of the Rules of Court. She complained of a lack of medical care in detention, including an absence of effective painkillers. On the same day the Court indicated to the Government, under Rule 39, that the applicant should immediately be given access to the entire range of medication available for cancer patients in accordance with Russian laws, including appropriate pain relief drugs. It noted that if such drugs were not available in prison medical institutions, the applicant should be transferred to a civilian hospital.

E. Developments following the application of Rule 39

29. Following the Court’s decision on interim measures the authorities continued treating the applicant in the prison hospital, which mostly consisted of treating her symptoms.

30. The applicant’s condition deteriorated rapidly. She complained of constant pain and asked to consult a psychiatrist. She was afraid that she would have no chance to say farewell to her mother, who was dying of cervical cancer in a hospital. On 16 March 2016 the prison psychiatrist prescribed her sedatives.

31. On 25 March 2016 the applicant was examined by a cancer specialist. He recorded that “additional prescriptions” were necessary to address the applicant’s severe and increasing pain. It does not appear that any changes in the pain relief therapy were made.

32. The applicant died on 9 April 2016.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

A. General provisions on medical care afforded to detainees

33. The relevant provisions of Russian and international law on the medical care of detainees are set out in the following judgments: Ivko v. Russia (no. 30575/08, §§ 55-63, 15 December 2015); Amirov v. Russia (no. 51857/13, §§ 50-57, 27 November 2014); Pakhomov v. Russia (no. 44917/08, 30 September 2011); and Yevgeniy Alekseyenko v. Russia (no. 41833/04, 27 January 2011).

B. Provisions on medical care related to cervical cancer

34. Joint orders nos. 190 and 640 from the Russian Ministry of Justice and the Ministry of Healthcare and Social Development respectively, both dated 17 October 2005, regulate the provision of medical care to detainees. They state that all convicted female detainees should have an annual gynaecological examination. It should include cytological testing with vaginal and urethral smears.

35. According to the “Standard for primary medical care for malignant cervical tumours at stage 0-IV”, approved by order no. 1193н of the Ministry of Healthcare on 20 December 2012, every case of cervical cancer requires a consultation with a specialist in radiotherapy, cytological testing, and a colposcopy.

36. The “Standard of special medical care for malignant cervical tumours at stage IV with paraaortic lymph node metastasis (palliative combined radiotherapy)” approved by order no. 620н of the Ministry of Healthcare on 7 November 2012, provides that a patient suffering from advanced cervical cancer should receive blockers of serotonin receptors, glucocorticoids, pyrazolone, and other medication. The use of those drugs is also set down in the “Standard for special medical care for malignant cervical tumour at stages IIB, III-IV (chemotherapy)” approved by order no. 740н of the same ministry on 9 November 2012.

THE LAW

I. PRELIMINARY CONSIDERATIONS: THE LOCUS STANDI OF THE APPLICANT’S DAUGHTER

37. The Court must first decide whether the applicant’s daughter, Ms Anna Kirillovna Semenova, can pursue the application.

38. The Government made no objections in that regard, leaving the issue to the Court to decide.

39. The Court notes that it normally permits the next of kin to pursue an application, provided they have a legitimate interest, where the original applicant died after lodging the application with the Court (see Murray v. the Netherlands [GC], no.10511/10, § 79, 26 April 2016, and Maylenskiy v. Russia, no. 12646/15, § 27, 4 October 2016). Having regard to the subject matter of the application and all the information in its possession, the Court considers that the applicant’s daughter has a legitimate interest in pursuing the application and that she thus has the requisite locus standi under Article 34 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40. The applicant complained that the authorities had failed to provide her with the requisite medical care in detention, in breach of Article 3 of the Convention, which reads:

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

A. Submissions by the parties

41. The applicant submitted a report prepared on 26 December 2016 by two specialists: Dr D., a qualified neurologist who performs forensic assessments and who has twenty-three years of professional experience, and Dr S., a qualified specialist in cancer treatment with twenty-four years of professional experience. The report addressed issues of diligence and promptness in the diagnosis of the applicant’s cancer and the adequacy of her treatment. The doctors observed that cervical cancer was an illness that progressed slowly, which could be easily diagnosed in its early stages by means of the cytological testing of a smear sample. They noted that the applicant had not been given that test during her routine gynaecological examinations, in breach of national regulations (see paragraphs 34 and 35). As a result, the cervical cancer had been diagnosed belatedly, when it was already at an advanced stage and when only palliative medical care was required. The doctors further concluded that the treatment provided to the applicant had been deficient. In particular, the medical authorities had failed to provide the applicant with a primary consultation with a specialist in radiotherapy, a colposcopy examination, or treatment with the required medicines: serotonin receptor blockers, glucocorticoids, pyrazolone, and so forth (for the relevant domestic regulations see paragraphs 35 and 36 above). They emphasised that the applicant should have been transferred to a specially designed palliative care unit.

42. The applicant also argued that the prison hospital had not been able to provide treatment for cancer patients. She submitted a letter from the Federal Service for Healthcare Surveillance, issued on 21 April 2016, which stated that the prison hospital was not licensed to provide healthcare services. According to the explanation provided by Medical Unit no. 78, written on 16 May 2016, the prison hospital had a contract with St Petersburg City Cancer Hospital to treat detainees.

43. The Government questioned the credibility of the expert report submitted by the applicant. They pointed out that Dr D. was not a cancer specialist and that he and his colleague had not made any conclusions as to the influence on the applicant’s health of the shortcomings they had identified in the quality of her medical care. They also argued that the applicant had already been ill at the time of her arrest. Her belated complaints of cancer symptoms and her refusal to be admitted to hospital in June 2015 had aggravated her situation and contributed to the tragic outcome of the case. Given the advanced stage of her cancer, the medical authorities had only been able to treat her symptoms. That treatment had been performed in full compliance with doctors’ recommendations.

B. The Court’s assessment

1. Admissibility

44. The applicant’s complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds and it must therefore be declared admissible.

2. Merits

(a) General principles

45. The applicable general principles were summarised in the cases of Blokhin v. Russia [GC] (no. 47152/06, §§ 135-40, ECHR 2016), and Ivko (cited above, §§ 91-95).

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

46. Sensitive to the subsidiary nature of its role, the Court reiterates that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether an applicant in fact required a particular treatment or whether the choice of treatment methods appropriately reflected the applicant’s needs (see Dumikyan v. Russia, no. 2961/09, § 58, 13 December 2016; Ukhan v. Ukraine, no. 30628/02, § 76, 18 December 2008, and Sergey Antonov v. Ukraine, no. 40512/13, § 86, 22 October 2015). However, it is for the Government to provide credible and convincing evidence showing that the applicant concerned received comprehensive and adequate medical care in detention (see Dumikyan, § 58, and Sergey Antonov, § 86, both cited above).

47. In the present case the applicant’s allegation of inadequate medical care, namely a belated cancer diagnosis and a lack of the required medical tests, examinations, and medicines was supported by an expert report (see paragraph 41 above). The Court gives credence to that evidence, having regard to the qualifications of the doctors who prepared it, their detailed analysis of the applicant’s medical history with references to medical standards, and the absence of any remarks on the substance of the report by the Government.

48. It further notes that in contrast to the applicant’s submissions, the Government’s observations were not supported by any expert assessment of the quality of the medical care. Instead, their arguments were based on the simple assumption that the applicant herself had contributed to the fatal outcome of her case because she had not contacted the prison doctor as soon as cancer symptoms had appeared and had refused immediate hospitalisation in June 2015. Although such conduct could indeed have aggravated her situation, it did not absolve the authorities from their obligation to provide her with adequate treatment.

49. Having regard to the documents in its possession, the Court finds that the treatment afforded to the applicant in detention was not adequate. It sees no explanation why, in breach of domestic requirements, she was not given cytological tests during routine health checks, or why later, when the illness had been diagnosed, she was not given a colposcopy or a consultation with a radiotherapy specialist. As can be seen from the applicant’s medical records, which was confirmed by the expert report, she did not receive the necessary medication, such as serotonin receptor blockers, glucocorticoids, and pyrazolone. The applicant’s doctor admitted in the court proceedings for her early release that the prison hospital did not have the required drugs (see paragraph 23 above). In addition to the shortcomings highlighted by the experts, the Court notes the failure to give her the radiotherapy that was prescribed for her on 22 September 2015 (see paragraph 20 above).

50. Lastly, the Court cannot overlook the fact that the prison hospital had no medical licence. Certain medical services for patients were provided by St Petersburg City Cancer Hospital under a special agreement (see paragraph 42 above). However, in the absence of any specific information on the medical services afforded to detainees by the terms of that agreement, the Court has serious doubts as to the adequacy of such an arrangement. That doubt is amplified by the numerous shortcomings in the applicant’s treatment identified in the present case. It appears that the prison hospital was unable to address the needs of a cancer patient.

51. The Court considers that the authorities’ failure to provide the applicant with the medical care she needed amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

52. Accordingly, there has been a violation of that provision.

II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

53. The applicant argued that the Government’s failure to provide her with immediate access to the entire range of drugs available for cancer patients or to transfer her to a civilian medical institution was a breach of the interim measure indicated by the Court under Rule 39 of the Rule of Court and had thus violated her right to individual application. She relied on Article 34 of the Convention, which reads as follows:

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

54. Rule 39 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. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may 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. Submissions by the parties

55. The Government argued that at the relevant time the applicant had already been admitted to the oncological unit of the prison hospital and given full access to the required medication. Her application for early release on medical grounds had been ongoing before the District Court and the Government had been unable to accelerate those proceedings.

56. The applicant maintained her complaints.

B. The Court’s assessment

1. General principles

57. The applicable general principles are set out in Paladi v. Moldova ([GC], no. 39806/05, §§ 84-92, 10 March 2009) and Amirov (cited above, §§ 65-68).

2. Application of the above principles to the present case

58. Turning to the circumstances of the present case, the Court notes that on 2 March 2015 it indicated to the Russian Government that the applicant should immediately be given access to the entire range of medication available for cancer patients in accordance with domestic law, including appropriate pain relief drugs. It noted that if such drugs were not available in any prison medical institution, the applicant should be transferred to a civilian hospital where such medication was available.

59. However, the prison authorities took no steps to comply with those recommendations. The applicant remained in the prison hospital, where she received the same treatment as before.

60. The Court has already found that the treatment received by the applicant in the prison hospital was palpably deficient, in particular, on account of the lack of appropriate drugs (see paragraphs 49 and 50 above). It therefore rejects the Government’s argument that no action was required to comply with the interim measure.

61. The authorities’ failure to take the required steps was contrary to the very purpose of the interim measure indicated by the Court, which was to ensure that the applicant received appropriate medical care in detention while her case was pending before the Court (see Pivovarnik v. Ukraine, no. 29070/15, § 60, 6 October 2016).

62. In the absence of any circumstances capable of justifying the passive conduct of the Government, the Court concludes that the respondent State has failed to fulfill its obligation under Article 34 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. 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

64. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

65. The Government stated that the claim was excessive given that the applicant’s daughter “had not experienced any negative consequences of inadequate medical treatment provided to her deceased mother”.

66. The Court awards the applicant the sum claimed in full, plus any tax that may be chargeable on that amount,to be paid into the bank account of her daughter, Ms Anna Kirillovna Semenova.

B. Costs and expenses

67. The applicant did not claim any compensation for costs and expenses. Accordingly, the Court does not make any award under this head.

C. Default interest

68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides that the applicant’s daughter, Ms Anna Kirillovna Semenova, has locus standi in the proceedings;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 3 of the Convention;

4. Holds that the respondent State has failed to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court, in violation of its obligation under Article 34 of the Convention;

5. Holds

(a) that the respondent State is to pay within three months into the bank account of the applicant’s daughter, Ms Anna Kirillovna Semenova, EUR 20,000 (twenty thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 3 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helen Keller
Deputy Registrar President

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