Kozhokar v. Russia

Application no. 33099/08, ECHR 2010
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This case is about the conditions of the applicant’s detention and the sufficiency of his medical care while he was detained in remand centre no. IZ-71/1 and correctional colony no. 7 in the Tula region of the Russian Federation.

On 18 October 2006, the applicant, a Russian national, was arrested for drug trafficking. He was subsequently convicted by the Proletarskiy District Court and sentenced to seven years’ imprisonment. During the pendency of his trial and appeal, a period of one year and two months, the applicant was held in remand centre no. IZ-71/1. After the Tula Regional Court upheld the judgment of the District Court in December 2007, the applicant was transferred to correctional colony no. 7.

The applicant, who was HIV-positive and co-infected with the hepatitis C virus at the time of his arrest and at all times during his detention, alleged that the conditions of his detention were inhumane, that the medical assistance provided to him was inadequate, and that the remedies available to him were ineffective.

With respect to the conditions of his detention, the applicant alleged that the various cells in which he was held were, among other things, overcrowded, poorly lit, poorly ventilated, extremely hot/cold, infested with vermin and insects, and covered with mould. Articles of hygiene were sparse, the bedding was dirty and ragged, and the food was of poor quality. Inmates were allowed to take a shower only once a week and were given insufficient time to shower. Inmates were otherwise confined to their cells at all times, with limited exceptions. The applicant shared his cell with persons suffering from tuberculosis and scabies. The applicant alleged that as a result of the overcrowding and poor sanitary conditions, he had been placed at high risk of contracting various infectious diseases. The situation was particularly dangerous for the applicant, because his immune system was already weakened by HIV. The applicant alleged that his health had in fact deteriorated and that he had started to suffer from various ailments.

With respect to the medical assistance afforded to him in the remand centre and in the correctional colony, the applicant alleged that it had been inadequate. In particular, the applicant alleged that he had not been examined by an infectious disease specialist, a herpetologist or an HIV specialist. His CD4 count had not been monitored four times a year as required by Russian law. Nor had he received antiretroviral therapy for HIV or antiviral therapy for hepatitis C. The applicant alleged that as a result of the insufficient medical assistance he had received, his disease had progressed and his life expectancy had been substantially reduced.

With respect to the remedies available to him, the applicant alleged that he had attempted to complain about the appalling conditions of his detention to both the prosecutor and the head of the penitentiary department in the Tula region. According to the applicant, the remand centre authorities intercepted his complaints, and the wardens threatened to harm him if he attempted to complain again. The applicant further alleged that he had complained to the head of the medical unit about inadequate medical assistance afforded to him, but his complaint had gone unanswered.

On 23 April 2008, the applicant lodged an application (no. 33099/08) against the Russian Federation with the European Court of Human Rights under Article 34 of the Convention for the Protection of Human Rights and Fundamental Rights. On the basis of the facts described above, the applicant alleged violations of Article 3 (regarding inhuman or degrading treatment) and Article 13 of the Convention (regarding lack of effective remedy for violation of rights and freedoms). On 24 November 2009, the President of the First Section decided to communicate the applicant’s complaints to the Russian Government. It was also decided to rule on the admissibility and merits of the application at the same time. The President made a decision to give the application priority treatment.

With respect to the alleged violation of Article 3 of the Convention in relation to the conditions of the applicant’s detention, the Court concluded there had been a violation of Article 3 on account that the domestic authorities subjected the applicant to inhuman and degrading treatment by keeping him in overcrowded cells. The Court noted that the Russian Government had conceded that the cells in which the applicant was held were overcrowded. For most of his detention in the remand centre, the applicant had between 2 and 3 sq. m of personal space. Although his personal space was on some occasions as much as 3.5 sq. m, it was at other times reduced to less than 2 sq. m. The Court noted that in previous cases where the applicants had less than 3 sq. m of personal space, it found that the overcrowding was so severe as to justify, in its own right, a finding of a violation of Article 3.

The Court noted that the Russian Government had not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Even assuming that the applicant occasionally had an opportunity to leave his cell, for the greatest part of the day the applicant was confined to his cell. Moreover, according to the Court, because the applicant was obliged to live, sleep and use the toilet in the same cell with so many other inmates, this was independently sufficient to cause distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and arouse in him feelings of fear anguish and inferiority capable of humiliating and debasing him.

With respect to the alleged violation of Article 3 of the Convention on account of insufficient medical assistance, the Court concluded that there had been a violation Article 3 on account of the authorities’ failure to comply with their responsibility to ensure adequate medical assistance to the applicant during his detention. The Court noted the applicant had been HIV-positive since 1999, that at the moment of his arrest in October 2006 his disease was at an advanced stage (clinical stage 3), and that he was also co-infected with hepatitis C virus. The Court concluded that given the nature and seriousness of the applicant’s ailments, his condition required regular and specialised medical supervision.

In order to determine the scope of the required supervision, the Court looked to relevant provisions of Russian law (Regulation 640/190 issued by the Ministry of Health and the Ministry of Justice and Order no. 474 issued by the Ministry of Health) establishing the minimum extent of medical assistance required for HIV-positive persons. The Court also looked to World Health Organization guidelines related to antiretroviral therapy for HIV infection in adults and adolescents. The Court concluded that the minimum scope of medical supervision required for the applicant’s condition included examinations by a general physician, an infectious disease specialist and a tuberculosis specialist twice a year and laboratory examinations consisting of blood work and urine tests, chest photofluorography and an abdominal ultrasound scan at least twice a year.

According to the Court, the evidence put before it showed that the medical supervision of the applicant had been unregulated and erratic. Moreover, detention authorities did not implement doctors’ recommendations of a special diet to maintain the applicant’s health. There was no evidence that the applicant had been subjected to systematic examinations or that his condition had been regularly checked by sufficiently qualified medical personnel capable of effectively assessing his condition and setting up an adequate course of treatment for his diseases.

In light of the lack of a comprehensive approach to the applicant’s medical supervision and given the serious diseases from which he was suffering, the Court concluded that the medical attention provided to him was inadequate. The Court noted that it did not appear from the evidence that the applicant’s condition had seriously deteriorated or that he was exposed to prolonged severe pain due to lack of adequate medical assistance. Accordingly, the Court found that the suffering the applicant may have endured did not amount to inhuman treatment. However, the Court concluded that the lack of adequate medical treatment posed very serious risks to the applicant’s health and must have caused him considerable mental suffering diminishing his human dignity, which amounted to degrading treatment within the meaning of Article 3.

With respect to the alleged violation of Article 13 of the Convention, the Court concluded that there had been a violation of Article 13 on account of the lack of an effective and accessible remedy under Russian law for the applicant to complain about the conditions of his detention. The Court noted that it had previously found violations of Article 13 on account of the absence of an effective remedy in respect of inhuman and degrading conditions of detention in Russia in other cases, primarily owing to the existence of an apparent structural problem of overcrowding in Russian detention facilities. The Court also noted that it had previously rejected identical objections about an applicant’s failure to exhaust domestic remedies in other cases regarding the conditions of detention, having found that neither a complaint to the prosecutor nor a tort action could be regarded as an effective remedy in Russia. According to the Court, the Russian Government submitted no evidence to enable the Court to depart from its findings in previous cases with regard to the existence of an effective domestic remedy for the structural problem of overcrowding in Russian detention facilities.

“The Court reiterates that although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical assistance (see Khudobin v. Russia, no. 59696/00, § 93, ECHR 2006-XII (extracts); Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and Kudła, cited above, § 94). The Court has held on many occasions that the lack of appropriate medical care may amount to treatment contrary to Article 3 (see, for example, Wenerski v. Poland, no. 44369/02, §§ 56 to 65, 20 January 2009; Popov v. Russia, no. 26853/04, §§ 210 to 213 and 231 to 237, 13 July 2006; and Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 100-106, ECHR 2005-II (extracts)).” (Para 105)

“The “adequacy” of medical assistance remains the most difficult element to determine. While acknowledging that authorities must ensure that the diagnosis and care are prompt and accurate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee's health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov v. Russia, cited above, § 211), the Court has also held that Article 3 of the Convention cannot be interpreted as securing for every detained person medical assistance at the same level as “in the best civilian clinics” (see Mirilashvili v. Russia (dec.), no. 6293/04, 10 July 2007). In another case the Court went further, holding that it was “prepared to accept that in principle the resources of medical facilities within the penitentiary system are limited compared to those of civil[ian] clinics” (see Grishin v. Russia, no. 30983/02, § 76, 15 November 2007).” (Para 105)

“On the whole, the Court retains sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).” (Para 107)

“ … [I]n order to determine whether Article 3 of the Convention has been complied with, the Court will focus on determining whether the domestic authorities provided the applicant with sufficient medical supervision capable of effectively assessing his condition and setting up an adequate course of treatment for his diseases.” (Para 108)

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