EUROPEAN COURT OF HUMAN RIGHTS
CASE OF IVKO v. RUSSIA
(Application no. 30575/08)
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Ivko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis Guerra, President,
Branko Lubarda, judges,,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 24 November 2015,
Delivers the following judgment, which was adopted on that date:
- The case originated in an application (no. 30575/08) 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, Mr Nikolay Viktorovich Ivko («the applicant»), on 13 May 2008. Following the applicant’s death on 11 October 2014, his partner, Ms Yelena Aleksandrovna Yusupova, informed the Court of her wish to pursue the application introduced by the applicant.
- The applicant, who had been granted legal aid, and later Ms Elena Aleksandrovna Yusupova, were represented by Mr E. Markov, a lawyer practising in Strasbourg. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
- The applicant argued, in particular, that he had not been provided with effective medical care whilst in detention and that he had not had effective avenues through which to complain about the violation of his right to adequate medical treatment.
- On 3 September 2013 the complaints concerning the lack of effective medical assistance and of effective remedies whereby to lodge complaints in this regard were communicated to the Government and the remainder of the application was declared inadmissible.
- On 24 September 2014, in response to the applicant’s request, the Court granted priority to the application under Rule 41 of the Rules of Court.
- The circumstances of the case
- The applicant was born in 1973 and until his arrest lived in the town of Volzhskiy, Volgograd Region.
- Criminal proceedings against the applicant
- Criminal proceedings in 2007 — 2009. Release on 15 May 2013
- On 16 October 2007 the applicant was arrested on suspicion of attempted drug trafficking and placed in custody. He remained in detention throughout the investigation and trial.
- On 28 May 2008 the Volzhsk Town Court («the Town Court») convicted the applicant of attempted drug trafficking and sentenced him to six years’ imprisonment in a high-security correctional colony. The court noted that the term of the applicant’s detention was to be calculated with effect from the date of his arrest on 16 October 2007.
- On 9 September 2008 the Volgograd Regional Court upheld the sentence on appeal. It mentioned, inter alia, that at the time of the hearing the applicant was detained in temporary detention facility no. IZ-34/5 in the town of Leninsk in the Volgograd Region.
- The applicant asked the Presidium of the Volgograd Regional Court to re-examine his case by way of a supervisory review. In February and March 2009 the applicant submitted additional observations to the Presidium, which were dispatched from facility no. IZ-34/5. The application for supervisory review was rejected.
- The applicant’s request for a re-examination of his case by way of a supervisory review was, however, granted by the Supreme Court of Russia, which on 13 January 2010 reduced the applicant’s sentence to five years and six months’ imprisonment.
- Having served his sentence in full, the applicant was released from detention on 15 May 2013.
- Criminal proceedings in 2013. Applicant’s death on 11 October 2014
- On 15 July 2013 the applicant was arrested on suspicion of another episode of attempted drug trafficking.
- On 27 September 2013 the Town Court convicted the applicant of attempted drug trafficking and sentenced him to three years’ imprisonment in a high-security correctional colony.
- On 11 October 2014 the applicant died in detention.
- Applicant’s detention, state of health and medical treatment
- Detention from 18 October 2007 to 27 June 2009 in a temporary detention facility
- The applicant and the Government offered different versions of the applicant’s detention and treatment in the temporary detention facility.
- According to the applicant, from 18 October 2007 to 27 June 2009 he was detained mostly in facility no. IZ-34/5. His letters to the Court dated 13 May and 7 December 2008 and 26 August 2009 were dispatched from that facility. A letter from the Court dated 8 June 2009 was sent to and received by the applicant in the same facility.
- The applicant also submitted that on several occasions he had been transported to court hearings and to penal medical institution no. LIU-15 in Volgograd («institution no. LIU-15») and that he had spent very short periods, in transit, in temporary detention facility no. IZ-34/1 of the town of Volgograd. In particular, the applicant had been sent to institution no. LIU-15 in 2008, where he had undergone successful treatment for tuberculosis. A chest X-ray examination on 14 January 2008 indicated that his tuberculosis had been cured, although extensive calcification and fibrosis remained in his lungs. On 17 January 2008 a medical commission confirmed his recovery. The applicant was prescribed anti-relapse treatment, but this was never provided to him after his return to the temporary detention facility.
- The applicant filed a number of complaints — for instance with the Prosecutor’s Office of the Volgograd Region — arguing that he had not been afforded adequate medical treatment in facility no. IZ-34/5. On 31 March 2008 the Prosecutor’s Office re-directed the applicant’s claim to the Federal Service for the Execution of Sentences in the Volgograd Region. A month later the authorities rejected the applicant’s claim as ill-founded. They confirmed that from 18 October 2007 he had been detained in facility no. IZ-34/5. Referring to the decision of the medical commission on 17 January 2008, the authorities held that the applicant’s tuberculosis had been fully cured.
- The Government, relying on a certificate issued on 18 December 2013 by the head of facility no. IZ-34/1, asserted that from 15 July 2007 to 22 October 2009 the applicant had been detained in that facility. In their observations of 31 January 2014, however, the Government mentioned the applicant’s detention in facility no. IZ-34/5, but did not provide any further details.
- Despite the Court’s request for the applicant’s entire medical file, the Government submitted no medical documents dating from the period after his arrest and up until 29 October 2009. They merely noted that the applicant had contracted hepatitis C and tuberculosis before his arrest. The applicant did not dispute that submission.
- Detention from 27 June to 29 October 2012 in a correctional colony
- On 27 June 2009 the applicant was transferred to correctional colony no. IK-154/9 of the Volgograd Region.
- According to the applicant, the medical service in the colony was very poor. The colony did not employ a tuberculosis specialist and the detainees’ access to drugs, which were often out of stock, was limited. The applicant only received basic anti-fever medication.
- The Government did not provide any information regarding the medical assistance afforded to the applicant in colony no. IK-154/9 and did not submit his medical record or any medical certificates from his time there.
- On 29 October 2012, after the applicant complained of coughing up blood, he was transferred to institution no. LIU-15.
- Detention from 29 October 2012 to 15 May 2013 in institution no. LIU-15
- The Government provided the Court with copies of the applicant’s medical documents for the period 29 October 2012 to 15 May 2013.
- The medical records show that on admission to institution no. LIU-15 the applicant had undergone a general medical examination, a chest X-ray examination and a clinical blood test. A sputum culture test was performed the next day. The applicant was diagnosed with recurrent smear-positive infiltrative tuberculosis of the upper lobe of his left lung at the stage of lung tissue destruction caused by mycobacterium tuberculosis («MBT»). He was prescribed protiocomb, a complex medicine containing protionamide, pyrazinamide, ethambutol hydrochloride, lomefloxacin hydrochloride and vitamin B6.
- On 6 November 2012 the applicant was tested for HIV, syphilis, hepatitis B and C. The test confirmed his hepatitis C infection, but no antibodies associated with the other infections were found.
- A week later the applicant again underwent a chest X-ray examination. It revealed that the cavity in the lung had decreased in size, and some negative changes in the lung tissues had progressed further.
- On 20 November 2012 the applicant was examined by a doctor, who noted in the «epicrisis» (medical report issued on the applicant’s discharge) that no significant changes in the applicant’s health had occurred and prescribed continued treatment with protiocomb and ciprofloxacin, an antibiotic used to treat a number of bacterial infections.
- On 1 December 2012 the applicant’s treatment was modified. He was prescribed a combination of anti-tuberculosis drugs and injections. A chest X-ray examination on 19 December 2012 showed no changes in the applicant’s lungs.
- The applicant sent an application to the Dzerzhinskiy District Court of the town of Volgograd seeking early release on medical grounds. That request was dismissed on 27 December 2012 upon the court’s finding that the applicant’s state of health did not warrant his release from detention.
- In February 2013 the applicant’s blood was twice taken for testing and his liver function was tested for the first time. On three further occasions in the same month the institution carried out a sputum culture test and also performed the first drug susceptibility test. The test was smear-positive. It revealed that the MBT was resistant to streptomycin. On 13 and 19 February 2013 the applicant underwent a chest X-ray examination and a tomography examination. They showed no changes. The treatment regimen was modified. The applicant was prescribed, among other medicines, pyrazinamide, ethambutol, prothionamide, cycloserine, rifampicin and isoniazid.
- As follows from the epicrisis of 27 February 2013 and a «regime violation record» dated 6 March 2013 signed by two deputy heads of institution no. LIU-15 and the head of the detention ward, the applicant refused to take the drugs pyrazinamide, ethambutol, prothionamide and cycloserine — citing their adverse effects on his health through inducing negative development of his hepatitis C — and claiming that doctors should first treat his hepatitis. According to the same record, the applicant also refused to give a written explanation of the reasons for his refusal.
- On 15 March 2013 the applicant’s X-ray examination established increased infiltration of the left lung tissue. According to a medical certificate dated 20 March 2013, his health had deteriorated due to his consistent refusal to take the prescribed medicines.
- According to an extract from the applicant’s medical history, on an unspecified date he agreed to take isoniazid, rifampicin and capreomycin on condition that he would be provided with hepatoprotectors.
- On 15 May 2013 the applicant was released from detention with a diagnosis of infiltrative contagious tuberculosis of the left lung at the stage of lung tissue destruction.
- Treatment in a civilian hospital from 27 May to 15 July 2013
- From 27 May to 15 July 2013 the applicant received in-patient medical treatment in a civilian anti-tuberculosis hospital, where he was diagnosed with active chronic fibrous-cavernous pulmonary tuberculosis at the stage of infiltration with bacilli emission, as well as hepatitis C. There is no information in the Court’s possession concerning the details of the applicant’s treatment during that period.
- Detention from 15 July to 21 October 2013 in temporary detention facilities
- The parties did not provide the Court with any information about the applicant’s detention and treatment after his renewed arrest on 15 July 2013. The applicant’s letters to Ms Yusupova submitted to the Court indicate that between 16 July and 21 October 2013 he was detained in facilities nos. 34/5 and 34/1, that he had no access to medical treatment, and that institution no. LIU-15 had refused to admit him for treatment before his conviction.
- On 18 October 2013 the applicant underwent a chest X-ray examination which indicated negative changes in his right lung. The volume of his left lung had decreased, its tissue was infiltrated and it contained a number of cavities.
- Detention from 21 October 2013 to 11 October 2014 in institution no. LIU-15
- Following the fresh conviction, on 21 October 2013 the applicant was admitted to institution no. LIU-15. He was examined by a doctor, who diagnosed him with hepatitis C and MBT positive infiltrative tuberculosis of the left lung at the stage of tissue destruction. The doctor ordered blood, urine, sputum culture and drug susceptibility tests and an electrocardiogram examination. The applicant was prescribed a long list of medicines, including capreomycin, isoniazid, ethambutol and hepatoprotectors.
- A week later, after the results of the tests had been received, the applicant’s treatment was slightly modifed to include ofloxacin.
- In the first half of November 2013 the applicant was examined on four occasions by doctors, who recommended continuing the prescribed treatment.
- On 14 November the applicant’s electrocardiogram examination revealed that he had mitral insufficiency.
- A medical record drawn up on 14 November 2013 by the applicant’s attending doctor indicated that the applicant had refused to take tuberculosis medicines on that date. The following entries in the applicant’s medical record dated 19, 21, 25, 27 and 29 November do not contain any similar information. The Government did not submit any other document (for instance, a regime violation record) showing that the applicant had refused to continue the treatment.
- On 6 December 2013 a medical commission examined the applicant and established no significant changes in his condition. The most recent entry in the medical record, made on 16 December 2013, showed no significant development in his health.
- No further information about the applicant’s treatment was provided after 16 December 2013.
- The applicant was certified as having second-degree disability on 1 May 2014.
- A medical panel examined the applicant on 15 August 2014 with the aim of determining whether his state of health warranted early release. The panel stated that the applicant was suffering from multi-drug resistant progressive tuberculosis aggravated by cavernosal fibrosis of the lungs and cardiopulmonary decompensation in the third stage. The applicant’s left lung was completely destroyed by the infection. The panel concluded that his state of health could warrant his release on parole.
- On 11 October 2014 the applicant died from tuberculosis in institution no. LIU-15.
- The applicant’s relationship with Ms Yusupova
- The documents from the case-file, including a court judgment, indicate that the applicant was not married. According to certificate no. 35/6/9-Ю-1ГР issued by institution no. LIU-15 on 20 October 2014, when being asked about his relatives, the applicant stated that he had a partner, Ms Yusupova. The authorities noted that statement in the applicant’s personal file and allowed Ms Yusupova to visit him in detention as his de facto wife. By a telegram on 11 October 2014 the authorities informed Ms Yusupova of the applicant’s death, addressing her as his wife.
- According to Ms Yusupova’s submissions, which were not contested by the Government, she was in a close family-like relationship with the applicant from 2010 until his death in detention. She visited him on many occasions, sent him letters and parcels. In 2013 when the applicant was released from detention they lived together and ran a common household.
- Ms Yusupova submitted that she had had intense and intimate correspondence with the applicant before his death. She provided the Court with two letters sent to her by the applicant in September 2013 to confirm that they had shared strong feelings for each other.
- On 11 September 2013 the applicant formally authorised Ms Yusupova to withdraw money from his bank account. In his letter to the Court on 1 March 2014 the applicant expressly asked the Court to award her non-pecuniary damage if he died.
- Relevant domestic law
Medical care afforded to detainees
- Russian law gives detailed guidelines regarding the provision of medical assistance to detainees. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice on the Organisation of Medical Assistance to Individuals Serving Sentences or Remanded in Custody («the Regulation»), enacted on 17 October 2005, are applicable without exception to all detainees. In particular, section III of the Regulation sets out the initial steps to be taken by the medical staff of a detention facility upon admission of a detainee. On arrival at a temporary detention facility, all detainees should have a preliminary medical examination before being placed in a cell shared by other inmates. The aim of the examination is to identify individuals suffering from contagious diseases and those in need of urgent medical assistance. Particular attention should be paid to individuals suffering from contagious conditions. No later than three days after the detainee’s arrival at the detention facility, he or she should be given an in-depth medical examination, including an X-ray. During the in-depth examination a prison doctor should record the detainee’s complaints, study his medical and personal history, log any injuries and recent tattoos, and schedule additional medical procedures if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses.
- Subsequently, detainees should be given medical examinations at least twice a year, or to follow up specific complaints. If a detainee’s state of health has deteriorated, medical examinations and assistance should be provided by the detention facility medical staff. In such cases the medical examination should include a general check-up and additional tests, if necessary with the participation of the relevant specialists. The results of the examinations should be recorded in the detainee’s medical file. The detainee should be given full information regarding the results of the medical examinations.
- Section III of the Regulation also sets out the procedure to follow in the event that a detainee refuses to undergo a medical examination or treatment. For each refusal, an entry should be made in the detainee’s medical record. A prison doctor should give a full explanation to the detainee of the consequences of his refusal to undergo the medical procedure.
- Any medicines prescribed for the detainee must be taken in the presence of a doctor. In a limited number of circumstances, the head of the detention facility medical department may authorise his medical staff to hand over a daily dose of medicines to the detainee to be taken unobserved.
- The Internal Regulations of Correctional Institutions, in force since 3 November 2005, deal with every aspect of inmates’ lives in correctional institutions. In particular, paragraph 125 of the Regulations provides that inmates may receive additional medical assistance if they are willing and able to pay for it. In such a situation, medical specialists from a State or municipal civilian hospital are to be called to the medical unit of the correctional institution where the inmate is being detained.
- Government Decree no. 54 of 6 February 2004 regulates medical examinations of detainees eligible for early release on health grounds. The same Decree contains a list of illnesses precluding a convict from serving his sentence. In particular, the Decree indicates that individuals suffering from progressive infectious, demyelinating and degenerative diseases of the central nervous system, accompanied by organic lesions of the dorsal and cervical brain with stable impairment of body functions (severe paralysis and paresis accompanied by reduced sensitivity, pelvic and trophic dysfunctions, or apparent akinetic-rigid syndrome) may be exempted from serving the remainder of their sentences (§ 21).
III. Relevant international reports and documents
- Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies («the European Prison Rules»)
- The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:
- Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency…
41.4 Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1 A medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary…
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to…
- diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment…
43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury, and any prisoner to whom attention is specially directed…
Health care provision
46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civilian hospitals when such treatment is not available in prison.
46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.»
- 3rd General Report of the European Committee for the Prevention of Torture («the CPT Report»)
- The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 — Publication Date: 4 June 1993). The following are extracts from the Report:
«33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
- While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime… The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay…
- 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.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
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.
- The direct support of a fully-equipped hospital service should be available, in either a civilian or prison hospital…
- 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.)…
- 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.
- 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…»
- General guidelines for multidrug resistant tuberculosis treatment of patients suffering from liver diseases
- The following are extracts from the «Treatment of Tuberculosis: Guidelines», fourth edition, World Health Organisation, 2009,
«3.6. Previous tuberculosis («TB») treatment is a strong determinant of drug resistance, and previously treated patients comprise a significant proportion (13%) of the global TB notifications in 2007.
Of all the forms of drug resistance, it is most critical to detect multidrug resistance («MDR») because it makes regimens with first-line drugs much less effective and resistance can be further amplified. Prompt identification of MDR and initiation of MDR treatment with second-line drugs gives a better chance of cure and prevents the development and spread of further resistance…
3.7. Standard regimes for previously treated patients
The Global Plan to Stop TB 2006 — 2015 sets a target of all previously treated patients having access to [drug susceptibility testing] at the beginning of treatment by 2015. The purpose is to identify MDR as early as possible so that appropriate treatment can be given…
Specimens for culture and drug susceptibility testing (DST) should be obtained from all previously treated TB patients at or before the start of treatment. DST should be performed for at least isoniazid and rifampicin…
In settings where rapid molecular-based DST is available, the results should guide the choice of regimen…
8.4 Treatment regimens in special situations
8.4.2 In patients with unstable or advanced liver disease, liver function tests should be done at the start of treatment, if possible… The more unstable or severe the liver disease is, the fewer hepatotoxic drugs should be used…
Clinical monitoring (and liver function tests, if possible) of all patients with pre-existing liver disease should be performed during treatment.»