CASE OF AKHMETOV v. RUSSIA
Violation of Art. 3 (substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
7. The applicant was born in 1967 and lives in Chelyabinsk. 8. In 1996 the applicant was detained in connection with criminal proceedings instituted against him and placed in remand prison IZ-70/3 in the Chelyabinsk Region. 9. On 30 December 1998 the Chelyabinsk Regional Court found the applicant, who had previous convictions, guilty of a number of criminal offences, including banditry, kidnapping and unlawful use of weapons. He was sentenced to the death penalty and to confiscation of property. 10. Between 14 December 1999 and 26 April 2000 the applicant was held in remand prison IZ-77/2 in Moscow pending the examination of his appeal. 11. On 28 February 2000 the Supreme Court of the Russian Federation altered the sentence, commuting the death penalty to fifteen years' imprisonment, ten years of which to be served in a prison and five years in a correctional facility. 12. From 10 May 2000 until an unspecified date in 2006 the applicant was held in prison YaV-48/T-1, Chelyabinsk Region (учреждение ЯВ-48/Т-1 по Челябинской области). 13. On an unspecified date in 2006 the applicant was transferred to prison no. T-2 in the Vladimir Region. 14. On 29 February 2007 the Metallurgicheskiy District Court of Chelyabinsk reviewed the sentence. Under the revised sentence, the applicant was to serve the entire term of his imprisonment in a correctional facility. 15. Since 1993 the applicant has suffered from a cavernous haemangioma of the right parietotemporal area. 16. In 1995 the applicant underwent examination and carotid ligation in the Microvascular Surgery Centre at Chelyabinsk Regional Hospital no. 1. 17. Following the applicant's placement in remand prison IZ-70/3 in 1996, he was examined by the prison doctors in connection with his complaints concerning the growth of the tumour and occasional haemorrhages of the tumour and the right auricle. The doctors subsequently applied antiseptic dressings and haemostatic medicines. 18. During the applicant's detention in remand prison IZ-77/2, Moscow, from 14 December 1999 to 26 April 2000 he was regularly examined by the prison doctors. 19. On 10 May 2000, following the applicant's transfer to prison YaV-48/T-1, he was examined by the deputy head of the prison medical unit. He was diagnosed with cavernous haemangioma of the head and right auricle and aseptic dressings were applied regularly. 20. On 24 May and 20 August 2000 the applicant was placed in the surgical department of penitentiary hospital IK-3. There he was examined by a neurosurgeon and oncologist and diagnosed with a cavernous haemangioma of the right temporal and parotid area involving the right auricle. 21. On 19 November 2000 the applicant was placed in penitentiary hospital IK-3 for surgery. On 14 December 2000 he underwent ligation of the occipital artery and of branches of the carotid artery with a view to reducing the blood supply to the tumour. A short-term improvement was observed after the surgery: the tumour decreased in size and the sores epithelised. The applicant was discharged from hospital on 15 January 2001 in a satisfactory state. 22. On 11 June 2001 the applicant was against placed in the surgical department of penitentiary hospital IK-3 on account of a growth in the tumour. There he was examined by M., microsurgeon of the Microvascular Surgery Centre at Chelyabinsk Regional Hospital no. 1, who had operated on the applicant in 1995 and 2000, with a view to determining the prospects for radical surgery. M. stated that, taking into account the previous surgeries, excision of the haemangioma, ligation of the nutrient stem and subsequent plastic surgery for the injury to the skull was recommended. Angiography and magnetic resonance tomography were also recommended. 23. On 8 October 2001 the applicant underwent tomography in Chelyabinsk Regional Hospital no. 1, since it was not possible to carry this out in penitentiary hospital IK-3. According to the angiosurgeon, the results of the tomography were not conclusive and angiography with intracranial vascular opacification was required. 24. On 25 October 2001 prison YaV-48/T-1 requested the Ministry of Justice to grant permission for the applicant's transfer with a view to providing him with the medical aid required. 25. On 19 February 2002 the Ministry of Justice granted permission to transfer the applicant to detention facility US-20/12 in St Petersburg. On 21 February 2002 the relevant instruction was sent to prison YaV-48/T-1. 26. From 15 April to 8 May 2002 the applicant was placed in facility US-20/12 in St Petersburg, where he was examined by E., an otolaryngologist-oncologist. The applicant was diagnosed with haemangioma of the right temporal and parietal areas and recurrent arrosive haemorrhages from the right auricle, which were life-threatening. It was recommended that he undergo radical removal of the tumour, with simultaneous plastic surgery of the injury and embolization of the vessels, in an oncological centre specialising in head and neck tumours. 27. According to the doctors of facility US-20/12, such treatment was not possible within the penitentiary system. They stated that an examination should be carried out by the Special Medical Commission (SMK) with a view to deciding on the applicant's possible release in connection with his state of health. 28. Between 30 July and 10 October 2002 the applicant was placed in the surgical department of penitentiary hospital IK-3 in Chelyabinsk, where he underwent medical examinations prior to the meeting of the SMK. The relevant medical record, no. 2388/618, stated as follows: “Diagnosis established by the referring medical institution: cirsoid haemangioma of the right parietotemporal area... 31 July 2002... Diagnosis upon discharge [from the hospital]: cavernous haemangioma affecting the right parietotemporal area and the right auricle. 16 September 2002...” 29. On 22 August 2002 the applicant was examined by surgeon K., Doctor of Medicine, Head of the Centre for Plastic and Aesthetic Surgery Plastes. After examining the applicant, she stated as follows: “Complaints concerning a tumour in the right parietotemporal area and the right auricle. According to the patient, the tumour appeared in 1993 and has been growing slowly. In 1995 he underwent surgery in the microsurgery department of Chelyabinsk Regional Clinical Hospital no. 1 (ЧОКБ №1); the external carotid artery was ligated on the right side. In 1996, after trauma to the soft tissues of the head, he noted continued growth of the tumour. [The patient] was examined in 2001. He underwent computer tomography of the brain... Conclusion: the patient has vascular malformation of the soft tissue of the right parietotemporal and parotid areas involving the right auricle (cavernous haemangioma). The illness does not fall within the category of cancerous tumours and is not of immediate danger to the patient's life. The non-abundant haemorrhages stop without assistance. [Surgery] is not possible in the surgery department of YaV-48/3 [hospital]. Radical ablation of the growth, with simultaneous plastic surgery to the soft tissues injury using an advanced flap, is possible only in specialised departments.” 30. On 20 September 2002 the applicant was examined by the SMK, which concluded that, having regard to the list of illnesses that could serve as a basis for early release from serving one's sentence, the applicant was not entitled to such release. The report of the examination stated: “Complaints: a tumour in the right temporal and parietal areas spreading to the right auricle. Anamnesis: ...The patient notes ... that the haemangioma on the right side appeared in 1993. In 1995 [he] underwent surgery in OKB no. 1 [hospital] [ОКБ № 1], and the external carotid artery was ligated on the right side. After surgery the tumour diminished somewhat. Rapid growth of the tumour, ulceration of the upper segment of the auricle and frequent haemorrhages from that area in 1996. On 19 November 2000 [he was] placed in the surgery department of the YaV-48/3 hospital. Ligation of the cervical branch of the temporal artery on 14 December 2000 – insignificant effect... In agreement with the medical unit of [the penitentiary service] he was placed in institution US-20/12 (Ус 20/12) between 15 April and 8 May 2002 with the diagnosis: cavernous haemangioma of the right parietotemporal area, recurrent arrosive haemorrhages from the right auricle affected by the tumour, threatening the patient's life. Recommended: ablation of the tumour with simultaneous plastic surgery in an oncocentre by oncologist [E.]. Such treatment is not feasible in the penitentiary system's facilities.. ... Examination by Z., the senior external surgeon of the medical unit [of the Chelyabinsk Region penitentiary service]: taking into account the anamnesis, the tumour has been growing slowly over the past seven years. No changes in bone tissue, no possibility of taking material for histological study on account of the risk of haemorrhage and impossibility of stopping it in the given circumstances, no changes in lungs, brain; the tumour is benign. Diagnosis: vascular malformation of soft tissues of the right parietotemporal and parotid areas involving the right auricle. No threat to life... Final diagnosis: vascular malformation of soft tissue of the right parietotemporal and parotid areas involving the right auricle.” 31. On 21 October 2002, after the applicant's return to prison YaV-48/T-1, he was examined by a regional medical-social commission. The commission decided not to grant him the status of a disabled person. 32. It appears that between 2 and 28 January 2003 the applicant was again placed in a penitentiary hospital. Medical record no. 372/76 stated: “...28 January 2003. Diagnosis upon discharge [from the hospital]: ...vascular malformation of the parietal and temporal areas, of the right auricle.” 33. On 2 February 2003 the applicant was examined by K, Head of the Department of Maxillofacial Surgery of Chelyabinsk Town Clinical Hospital no. 3. The report of the examination stated: “Complaints about a tumour in the right temporal, parotid and cervical [areas] and the auricle. There is progressive tumour growth: the tumour currently measures 15x14 centimetres, protrudes from the surface of the skin and pierces it with a vascular figure. Auscultation creates noise in the parotid and temporal [areas]... In the auricle area there are zones of necrosis... Diagnosis: vast haemangioma... of the right temporal, parotid and parietal areas and the auricle. Surgery is not recommended because of the high risk to life. Sclerotherapy (SHF, X-ray therapy) is recommended...” 34. On 14 March 2003 the administration of prison YaV-48/T-1 requested the Ministry of Justice to assist with the applicant's treatment, since there were no facilities for X-ray therapy in the prison. 35. On 29 April 2003 the Ministry of Justice replied that the administration of prison YaV-48/T-1 should apply with a request for the applicant's transfer to penitentiary hospital OZh-118/5 in Voronezh. The prison authorities applied for such a transfer. 36. On 25 August 2003 hospital OZh-118/5 in Voronezh refused the request on the ground that it had no specialists qualified for the treatment of the applicant's condition. On the same date the prison authorities again requested the Ministry of Justice to assist with the applicant's treatment by SHF and X-ray therapy. 37. On 18 September 2003 the administration of prison YaV-48/T-1 received an order on the applicant's transfer to facility US-20/12 in St Petersburg. On 19 October 2003 the applicant left for the facility. 38. The applicant was placed in inter-regional penitentiary hospital IK-12 (MOB) from 24 November 2003 to 7 January 2004. He underwent a biopsy and was examined by a panel consisting of the head of the hospital, the deputy head of the medical department, the deputy head of the surgical department and the head of the otolaryngological department. The applicant was also examined by Sh., the head of the neurological department of Town Hospital no. 2, and E, an oncologist. According to the panel's report, treatment of the applicant's condition was not possible in hospital IK-12 (MOB). The applicant was discharged in a satisfactory state and supervision by a maxillofacial surgeon was recommended. 39. Following the applicant's return to prison YaV-48/T-1 on 26 February 2004 he complained about occasional haemorrhages and pains. He received treatment consisting of dressings with haemostatic sponges and analgesics. 40. On 27 March 2004 the applicant was examined by plastic surgeon M. and stomatologist F. They reached the following conclusions: “The patient has vascular malformation of the soft tissue of the right temporal and parietal areas and the ear with ulceration. There is a risk of profuse bleeding. Angiography is necessary. It will be possible to decide whether surgical treatment is possible only after the angiography.” 41. From 8 April to 2 June 2004 the applicant was placed for examination in penitentiary hospital YaV-48/3. He was discharged in a satisfactory state. 42. After the applicant's return to prison YaV-48/T-1 on 8 June 2004 he was examined by the prison doctor every day. 43. According to the Government, on 18 June 2004 the applicant, who was trying to avoid placement in a disciplinary cell, caused himself injuries in the area of the tumour; this resulted in profuse bleeding. He was urgently placed in a surgical department of the Verkhneuralsk Central District Hospital. There he underwent haemostatic therapy and on 21 June 2004 he was discharged in a satisfactory condition. During the subsequent period of his detention in prison YaV-48/T-1 minor haemorrhages occurred; these were stopped by dressings. 44. On 13 July 2004 the applicant was again placed in the surgical department of penitentiary hospital IK-3 for examination with a view to determining subsequent treatment. 45. On 5 August 2004 the applicant underwent angioarteriography of the vessels of the head. 46. On 11 August 2004 the applicant was examined by M., a plastic surgeon, and O., the head of the vessel surgery department of Chelyabinsk Regional Hospital no. 1. They stated, in particular: “The patient has evident pathology of intracranial sections of the right and left vertebral arteries feeding the pathological centre (malformation). Ligation of the vertebral arteries is impossible because of the high risk of truncal stroke. Excision of the vascular tumour and plastic surgery is impossible because of its very big size and feeding by intracranial sections. Palliative therapy is recommended.” 47. On 18 August 2004 the applicant was examined by radiologist K., who stated: “The patient has vast cavernous haemangioma of the right parietotemporal area spreading to the auricle and neck. There is vast ulceration with decomposition. Branches of the external carotid artery were previously ligated. Taking into account the amplitude of the lesion and decomposition effects, radiotherapy for sclerosing is not recommended.” 48. On 24 August 2004 the applicant was discharged from the hospital in a satisfactory state. Palliative treatment was recommended (antiseptic dressings, haemostimulating therapy and, in the event of haemorrhages, haemostatic therapy). He was also referred for examination by the medical-social commission. The medical unit of prison YaV-48/T-1 complied with the recommendations. The applicant was regularly examined by the unit doctors and received dressings. 49. On 20 October 2005 the applicant was placed in Regional Somatic Hospital no. IK-3 for haemostatic therapy and examination by the medical-social commission. He was granted category-3 disability status. 50. On 24 October 2005 the applicant was discharged from the hospital in a satisfactory state. In prison YaV-48/T-1 he continued to receive symptomatic therapy and antiseptic dressings. 51. On 25 November 2004 professor D., Department of Vascular Surgery of the Vishnevsky Institute of Surgery, issued a medical opinion on the basis of the results of the angiography: “From the results of the angiography it follows that the main source of blood supply for the [affected] zone is the basin of the vertebral artery through intracranial vessels. Therefore, any interference ... is connected with an extremely high risk of neurological complications (haemorrhagic or ischemic stroke) and can be performed only in highly specialised neurosurgical institutions. Radical surgical treatment with ablation of all the affected areas is impossible because of the amplitude of the lesion. It is recommended that the patient be supervised by a surgeon and, in case of haemorrhage, stitching of angiomatous tissues.” 52. On 30 January 2006, upon studying the applicant's medical file, the Moscow State Medical-Stomatological University refused to accept him for treatment. 53. On 15 February 2006 the Ministry of Justice informed the administration of prison YaV-48/T-1 that the applicant could be placed for treatment in the Krasnoyarsk Regional Hospital. The prison administration requested an order for his transfer. 54. On 20 May 2006 the Ministry of Justice replied that the order could be granted only upon confirmation from the Krasnoyarsk Regional Hospital that it would accept the applicant for treatment. 55. On 14 July 2006 the Krasnoyarsk Regional Hospital replied that it could not accept the applicant since it did not have the technical facilities for the treatment required. 56. From 26 October 2006 to 20 March 2007 the applicant underwent treatment for tuberculosis in penitentiary hospital IK-3. 57. On 27 February 2007 the Tyumen Regional Hospital informed the penitentiary authorities, in reply to their request, that it could not provide treatment to the applicant given the absence of the necessary technical facilities. 58. Following the applicant's transfer to prison no. T-2 in the Vladimir Region, he was placed in the surgical department of the penitentiary hospital. On 1 February 2008 he was examined by an oncologist, who diagnosed him with a giant cavernous haemangioma of the head and stated that surgical treatment was not recommended because of the extent of the propagation of the tumour. He recommended symptomatic treatment only. 59. On 13 March 2008 the applicant was again examined by the medical-social commission, which granted him category-2 disability status. 60. In 2003 the applicant applied to a court seeking to have the failure to provide him with adequate medical aid in prison declared unlawful. He also asked the court to order his placement in the Chelyabinsk Oncological Centre for treatment. 61. On 16 September 2003 the Tsentralniy District Court of Chelyabinsk dismissed the claim. The court found that the following medical aid was provided to the applicant during his imprisonment: between 28 February and 10 May 2000 – examination by doctors and conservative treatment; between 24 May and 20 August 2000 – placement in the surgery department of YaV-48/3 (ЯВ 48/3) hospital for convicts, Chelyabinsk, consultations with a neurosurgeon and oncologist; 19 November 2000 – placement in the YaV-48/3 hospital for another elective operation conducted on 14 December 2000; between 11 June and 4 December 2001 – placement in YaV-48/3 hospital, computer tomography conducted on 8 October 2001; between 15 April and 8 May 2002 - treatment and consultations by doctors in institution US-20/12, St Petersburg (учреждение УС-20/12 ГУИН по Ст.-Петербургу и Ленинградской области); between 30 July and 10 October 2002 – placement in the surgery department of YaV-48/3 hospital; 22 August 2002 – consultation by the Department Head of the Plastes (Пластэс) centre; 20 September 2002 – an examination by a special medical commission (СМК); 1 October 2002 – a medico-social examination (МСЭ) in Magnitogorsk; 26 January 2003 – placement in the YaV-48/3 hospital; 3 February 2003 – consultation by the head of Chelyabinsk hospital no. 3 (ЧЛХО МУ 3 «ГКБ № 3 г. Челябинска). The court held that the medical aid provided had been sufficient. The applicant appealed. 62. On 20 November 2003 the Chelyabinsk Regional Court upheld the judgment on appeal. 63. On 3 March 2004 the Deputy Head of Hospital IK-12 (ИК-12) of the Main Department for the Execution of Sentences replied to a query by the applicant's wife: “In reply to your request... I inform you that [the applicant] was placed in [IK-12 hospital] between 24 November 2003 and 19 January 2004 with the diagnosis: racemose haemangioma of the right parietal area, the right auricle and the right half of the neck. Recurrent arrosive haemorrhages threaten the patient's life. Surgical treatment is not feasible in [the penitentiary system's] facilities. Progressive growth of the tumour is possible in the absence of treatment. Out-patient supervision has been recommended... The possibility of a fatal outcome in the event of trauma to [the area of the haemangioma] is very high. It is possible to stop haemorrhage only in specialised surgical in-patient facilities. Branches of the external carotid artery are involved in the tumour.” 64. On 14 November 2005 the Deputy Head of the Medical Department of the Federal Service for the Execution of Sentences replied to the applicant's wife: “...Surgical treatment of [the applicant] in Moscow institutions is not possible. The decision with regard to surgical treatment of [the applicant] can be taken after he has been examined in the place where he is serving his sentence.” 65. On 15 February 2006 the First Deputy Head of the Medical Department of the Federal Service for the Execution of Sentences replied to the applicant's wife: “The Federal Service for the Execution of Sentences examined your request concerning the transfer of your husband ... who is serving his sentence in ... the Chelyabinsk Region to Moscow for specialised medical treatment. [Your husband's] illness is subject to elective operative treatment and requires high-technology (expensive) medical aid. The procedure for providing such aid to patients held in institutions of the Federal Service for the Execution of Sentences is not established by the federal executive authority responsible for the legal regulation of health protection and social development. Since the legislation requires [the patient's] voluntary informed consent to medical interference, it follows that only your husband ... may apply for such treatment. If he gives his written consent for the transfer and medical intervention, he can be transferred to the regional hospital for convicts ... of the Krasnoyarsk Region, where there are technical facilities for the provision of the required additional medical aid (endovascular surgical intervention and plastic surgery, provided participation of external specialists from other medical institutions). The procedure for providing additional medical aid to convicts is governed by the internal regulations of correctional facilities. The possibility of such treatment in the Burdenko Institute of Neurosurgery or in the Hospital of Surgical Stomatology and Maxillofacial Surgery ... is not provided by [relevant regulations].” 66. On 22 May 2006 the Chief Medical Officer of the Krasnoyarsk Regional Hospital pertaining to the Federal Service for the Execution of Sentences (ФГЛПУ КТБ-1 ГУФСИН России по Красноярскому краю) replied to the request of the applicant's wife:: “In reply to your request concerning hospitalisation of [the applicant] for in-patient treatment in [the Krasnoyarsk Regional Hospital for convicts] and after having studied the medical documents provided, we have to inform you that the treatment, including surgical intervention, is not feasible in the facilities of [the Krasnoyarsk Regional Hospital for convicts] even with the assistance of external specialists from other medical institutions, because of an absence of technical facilities for the operation, diagnostics, control and treatment ... [and] of possible post-operative complications which would be life-threatening for the patient.” 67. On 28 March 2008 the head of prison no. T-2 of the Vladimir Region informed the applicant's wife of the applicant's placement in the penitentiary hospital and the examination by an oncologist on 1 February 2008. The letter also stated that the haemangioma only posed a threat to the applicant's life in the event of haemorrhages from its vessels. However, during the period under supervision there had been no such haemorrhages. At the same time the haemangioma increased by 1-1.5 centimetres. 68. The relevant extracts from the General Reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “a. Access to a doctor ...35. 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. ... 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. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...”