A.B. v. Russia

Application No. 1439/06
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The applicant was detained and sent to remand prison in May 2004, for attempted swindling; the court felt the applicant could be a repeat offender since he had no permanent residence or income. He was to be held in remand prison until his trial.

The applicant had pre-existing chronic Hepatitis C and was diagnosed HIV-positive upon a routine blood test given the day of his arrival at the prison. The applicant made several requests to be treated in the hospital to boost his immune system; however, all requests were declined and was advised to take “aspirin, papaverine and analgesics” and was threated with solidary confinement. On June 3, 2004 the applicant was diagnosed with stage 2B HIV Infection he was seen by an infectious disease doctor and prescribed a special diet. The applicant requested to be seen in the hospital in August and September of 2004 due to his HIV status; however he was denied on the basis of too many HIV patients and not enough beds for him to be seen.

During his time in the remand prison the applicant was placed in solidary confinement for three years for no reason other than the remand prison felt his life may have be in danger from other inmates. In addition, the applicant was never given any antiretroviral treatment for HIV and his health had substantially declined.

The applicant filed several complaints in regards to his lack of medical treatment as well as his living conditions in solitary confinement; however, he never received any formal replies from the prison in regards to not placing him in a hospital when needed, treating him with proper medication for his HIV status or any reason why he was contained to solitary confinement while awaiting trial.

The court found the complaints under Article 3 of the Convention concerning the applicants’ solitary confinement and lack of medical assistance available to him admissible and held that Article 3 had been violated.

The World Health Organization (WHO) has established specific guidelines in determining protocol, diagnosis and treatment for HIV diseases. . One diagnostic treatment used is a specific blood test “CD4” count which determines the HIV classification and when antiretroviral treatments should be administered. In addition, the “CD4” count should be given yearly to HIV positive patients. While the applicant was treated on several occasions and received a check up while in detention, there was no record of the applicant receiving a CD4 count as a diagnostic measure for more than six years or the proper medications to treat his HIV infection. The court found the lack of medical assistance was “inhuman and degrading treatment” under Article 3 of the Convention.

The court reiterates Article 3 of the Convention on account of the applicant’s solitary confinement Solitary confinement in the court’s eyes is one of the most serious measures that can be imposed within a prison. The applicant was in solidary confinement for at least three years for a non-violent crime and the applicant was not a danger to himself or to others. In addition, the applicant was never given a clear reason why he was placed in solidarity confinement in a cell that was designed for prisoners convicted to life imprisonment. The applicant was still waiting to be tried by a court and was still presumed to be innocent.

The court holds that the state needs to pay the applicant 27,000 euros, plus any taxes and 10,091 euros to cover as well as simple interest.

“HIV positive persons have the right to receive all types of medical assistance required by clinical         data. They enjoy all the rights guaranteed by laws of the Federation on public health protection          (section 14)”. Para 77)

The 11th General Report (CPT/Inf (2001) 16) prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases reads, in so far as relevant, as follows:

 “31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries ...

 …[T]he act of depriving a person of his liberty always entails a duty of care ...

 The use of up-to-date methods for screening, the regular supply of medication ... constitute essential elements of an effective strategy ... to provide appropriate care to the prisoners concerned.

 ….[T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive.” (Para 81)

 The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Enea v. Italy [GC], no. 74912/01, § 56, ECHR 2009-...). Measures depriving a person of his liberty may often involve an element of suffering or humiliation. However, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, (Para 100)