Kozhokar v. Russia

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The applicant was a Russian national who was convicted of drug trafficking and was serving his sentence in prison in Russia. The applicant complained to the European Court of Human Rights (the ECHR) about the conditions of his detention in the cells he had been imprisoned in, and that an effective domestic remedy hadn’t been available to him. The applicant alleged a violation of Articles 3 and 13 of the European Convention on Human Rights (the Convention).

In particular, the applicant submitted that  several people had been detained in a single cell without sufficient bedding.  He also stated that there was no ventilation and sufficient shower, the toilet and the dining table were close, an inmate could be seen when using the toilet, the food was tasteless and wasn’t nutritive. The applicant also claimed that he hadn’t been provided with special diet although a doctor prescribed for him. The applicant also claimed that he was taken to court in conditions that were inhuman. Although he had communicated the issue with the supervising prosecutor, there hadn’t been a thing that was done to deal with the problem.  Moreover, he wanted to complaint with the prosecutor or the prison’s administration but he was threatened by warders that he would suffer if he were to complain, and he was placed under punishment cell for 10 days.  The applicant also argued that due to “overcrowding and poor sanitary conditions he had run a high risk of contracting various infectious diseases, such as tuberculosis and scabies. His health had deteriorated and he had started to suffer from various ailments, such as colds, headaches, abdominal pains, depressions and deteriorating eyesight”. [Para. 87]

The government submitted the number of people that were detained with the applicant in different cells at different times. It further submitted that prisoners were allowed to take shower once a week for forty minutes, and to walk for one hour a day. The government stated that the applicant had frequently seen a doctor outside of the cells; “inmates suffering from infectious diseases, such as scabies, tuberculosis, HIV, hepatitis or sexually transmittable diseases, were held separately from other inmates. The applicant was never held together with anyone suffering from scabies or tuberculosis”. [Para. 16]

Medical records showed that the applicant had undergone several examinations and treatments between October 2006 February 2010. The medical unit at the prison where he had been treated was composed of a variety of health professionals including specialists. The applicant had HIV and Hepatitis C; he had also received treatment by different specialists at the prison hospital.

The ECHR noted that the government hadn't shown the existence of effective domestic remedy that was available for the applicant to complain about the inhuman and degrading treatment he had faced in prison. The ECHR held that the applicant didn't have access to an effective remedy under domestic law to complain about the conditions of detention and thus found a violation of Article 13 of the Convention.

The ECHR observed that there was no proper supervision of the medical assistance that had been provided for the applicant. Although several examinations had been performed for the applicant, the measures that were taken following them were not timely, regular and whole. The tests were essential in determining the time at which the applicant would need to start antiretroviral treatment for HIV, and in indicating infections he might  have contracted; they, however, were performed randomly.

The ECHR noted that the applicant hadn't been examined by an infectious disease specialist or a TB specialist despite recommendations made to that effect. He had been examined for the most of the time by a general practitioner who would make all the decisions regarding the applicant's condition. The ECHR noted that it was not possible to determine that the applicant didn't actually require antiviral treatment for the Hepatitis C as it wasn't clear which physician made such decision. The ECHR also noted that the applicant hadn't been provided with the special diet recommended for him.

The ECHR found that the medical care that had been provided for the applicant was not regulated or consistent. The regularity and adequacy of the treatment provided to the applicant wasn't shown despite the seriousness of HIV and Hepatitis C. The ECHR held that such inadequate treatment must have caused psychological suffering that diminished his dignity as human, constituting degrading treatment, a violation of Article 3 of the Convention.

The ECHR awarded the applicant non-pecuniary damage.

"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." [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”." [Para. 107]

"..it is not the Court's task to rule on matters lying exclusively within medical specialists' field of expertise and establish whether the applicant in fact required such treatment. Instead, in 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. It considers that, given the nature and seriousness of the applicant's ailments, his condition required regular and specialised medical supervision for monitoring of the progression rate of his hepatitis C and HIV diseases, timely prescription of the requisite HIV and hepatitis C therapies and timely diagnosis and treatment of possible opportunistic infections". [Para. 108]