CASE OF NOGIN v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1981 and lives in Syktyvkar. 6. On an unspecified date criminal proceedings were instituted against the applicant on suspicion of aggravated rape. 7. Between 8 August and 9 November 2006 the applicant was held in pre-trial detention in remand prison SIZO no. 1 of Syktyvkar (СИЗО № 1 г. Сыктывкара). 8. On 9 November 2006 the applicant was released subject to an undertaking not to leave a specified place. 9. On 8 December 2006 the Syktyvkar Town Court convicted the applicant as charged and sentenced him to two years and six months’ imprisonment. 10. On the same date the applicant was detained in SIZO no. 1 of Syktyvkar. 11. On 11 April 2007 the applicant was transferred to prison IK-31 in Mikun. 12. On 6 March 2009 the applicant’s prison sentence expired and he was released from the correctional facility. 13. The applicant has been suffering from an insulin-dependent form of diabetes since the age of four. The disease has entailed various complications, including diabetic angioretinopathy and complicated diabetic cataracts. 14. On 24 April 2006 the applicant underwent a medical examination in connection with his eyesight problems at a municipal clinic at his place of residence. The examination confirmed that the visual acuity of the applicant’s right eye was 0.02, which corresponded to his ability to count the fingers on a hand from a distance of one metre, and that the visual acuity of his left eye corresponded to his ability to see hand movements near his face. According to the applicant, at that time he was able to orientate himself within familiar spaces, such as his flat, medical institutions and streets in the town. 15. On 20 November 2006, following his release from pre-trial detention, the applicant underwent another medical examination at the same municipal clinic, which established that he could count the fingers on a hand from a distance of 0.5 metres, that is that his visual acuity was 0.01, and that he could see hand movement near his face with his left eye. A cataract operation was recommended. 16. In December 2006, shortly after the applicant had been detained following his conviction by the Syktyvkar Town Court, he was admitted to prison hospital B-18 and diagnosed with a serious form of insulindependent Type 1 diabetes, subcompensation, diabetic polyneuropathy, diabetic nephropathy, symptomatic arterial hypertension, chronic renal insufficiency, an immature diabetic cataract in the left eye and an almost mature diabetic cataract in the right eye. The visual acuity of the applicant’s right eye was 0.02 and of his left eye was 0.004. 17. In late December 2008, in connection with his request for release on parole (see paragraphs 60-62 below), the applicant was examined by a special medical commission of the correctional facility where he was being detained at that time. The commission confirmed that the applicant had a serious form of insulin-dependent diabetes and all the accompanying diseases which had been established before. As regards the applicant’s eyesight, it was stated that he could detect hand movement near his face with his right eye but that he was blind in his left eye. The applicant was diagnosed with complicated diabetic cataracts in both eyes, and specifically with an almost mature cataract in the right eye and a mature cataract in the left eye. 18. On 14 March 2009, after the applicant had been released, he was examined by an ophthalmologist at the municipal clinic at his place of residence. It was established that he could detect hand movement near his face with his right eye and that he was blind in his left eye. The ophthalmologist recommended that he undergo urgent surgery for his cataracts. 19. On 12 May 2009 the applicant was admitted to the ophthalmology department of a public hospital for cataract surgery. According to the applicant, the doctors confirmed that his visual acuity corresponded to that established on 14 March 2009 and refused to carry out any surgery on the grounds that they were not sufficiently experienced to operate on cataracts at such an advanced stage. They recommended that the applicant be operated on in a specialised research institution. The applicant was discharged from the hospital the following day. 20. On 10 July 2009 a research clinic for eye problems in Moscow diagnosed the applicant as having a complicated immature cataract, proliferative diabetic retinopathy and retinal detachment in respect of his right eye, and neo-vascular terminal glaucoma and advanced retinal detachment in respect of his left eye. The visual acuity of the right eye was “light perception with correct light projection” and he was blind in the left eye. 21. On 14 July 2009 the applicant underwent surgery on the cataract in his right eye. The surgery was successful and when he was discharged from the clinic on 20 July 2009, he could detect hand movement near his face with his right eye. 22. On 29 September 2009 the applicant underwent another medical examination at the same clinic in Moscow with a view to establishing whether any further surgery on his right eye could be effective. It was established that he had a complete retinal detachment in his right eye caused by diabetes and that he was unable to see any distinct object with that eye, which meant that further surgery would be devoid of any prospect of success. 23. Following his conviction, the applicant was admitted a number of times to prison hospitals for examination and treatment. The admissions were as follows: - between 8 and 24 December 2006 to the hospital of SIZO no. 1 of Syktyvkar; - between 24 December 2006 and 20 March 2007, 20 and 25 April 2007, 1 and 24 September 2007 and between 2 and 23 October 2008 to prison hospital B-18; - between 11 and 20 April 2007; 25 April and 1 September 2007, 31 July and 2 October 2008 and between 23 October and 6 March 2009 to the hospital of prison IK-31 in Mikun. 24. The Government provided the Court with copies of licenses issued to the prison hospitals to practise medical activity. 25. The applicant was regularly examined by a doctor, an endocrinologist and an ophthalmologist. Blood and urine tests were regularly carried out. A number of other tests, such as ultrasound of the abdominal cavity, electrocardiogram, fluorography and rheography of the legs and feet were also performed. The applicant was provided with symptomatic treatment, which, apart from insulin, included hypotensive therapy, medicines to improve microcirculation, vitamins and nootropics. 26. In autumn 2006, while the applicant was being held in pre-trial detention in SIZO no. 1 of Syktyvkar, the remand prison doctor prescribed him special diet no. 7b, in which sugar was replaced with milk. In January 2007, while he was in prison hospital B-18, the applicant was prescribed special diet no. 7a, in which sugar was replaced with milk. 27. According to the applicant, between April and July 2007, and then from early 2008 onwards, including on the date on which he lodged his application with the Court, he did not receive a special diabetic diet in the correctional facility. 28. According to a certificate of 28 March 2012 issued by prison hospital B-18, during his hospitalisation sugar was replaced with milk in the applicant’s diet. 29. In an epicrisis of April 2007 it was stated that at the time, prison IK31 did not have a sufficient supply of Humalog and Lantus and, therefore the applicant’s admission to the prison hospital had been recommended in order to find an alternative treatment. 30. According to the applicant, in July 2008 the prison authorities provided him with insulin with an expiry date of March 2008. He was allegedly informed of this by another prisoner, V., and enclosed the latter’s statement to that effect. 31. According to a certificate issued by prison IK-31 on 29 March 2012, during his detention in the prison the applicant was provided with the required insulin treatment. On several occasions when the forms of insulin specifically prescribed for the applicant by the endocrinologist were temporarily unavailable, he was provided with other forms of insulin. However, insulin that was past its expiry date was never used by the medical unit of prison IK-31. 32. According to an extract from the register of insulin supply of prison IK-31 for the period from 21 May 2007 to 8 May 2008, the forms of insulin prescribed to the applicant had the following expiry dates: May 2008, August 2008, June 2009 and August 2009. 33. According to the applicant, throughout his detention his eyesight steadily deteriorated because he was denied the necessary surgical intervention. 34. On 12 September 2006, while the applicant was being held in pre-trial detention in SIZO no. 1 of Syktyvkar, he was examined by an ophthalmologist who stated that in the facilities under the authority of the Ministry of Health it would be possible to remove the cataract from his left eye and implant an intraocular lens. 35. In reply to a request of a Syktyvkar Town Court judge asking whether diabetic cataracts in both eyes were irreversible, an ophthalmologist stated on 7 December 2006 that patients suffering from cataracts, including diabetic cataracts, were recommended surgery to improve their eyesight. Accordingly, bad eyesight caused by cataracts could not be considered irreversible. 36. On 26 December 2006 the applicant was examined by an ophthalmologist, who stated in his report that the applicant had had bad eyesight for approximately five to seven years, and had been unable to see anything with his left eye for approximately two years. On an unspecified earlier date surgery had been proposed to him in Syktyvkar, but he had refrained from undergoing it. However, the applicant now wished to undergo the surgery. The ophthalmologist stated that in the facilities under the authority of the Ministry of Health it would be possible to undergo elective surgery to remove the cataract from the applicant’s left eye and implant an intraocular lens. 37. On 13 April 2007 the applicant was examined by an ophthalmologist, who took note of his wish to undergo surgery on the cataracts. 38. On 3 May 2007 the applicant was again examined by an ophthalmologist, who recommended cataract surgery. 39. In a letter of 28 June 2007 the Federal Service for the Execution of Sentences in the Republic of Komi (“the FSIN”) informed the applicant’s mother that the applicant was being provided with the necessary medical assistance in connection with his disease. The letter also stated that surgery in respect of his eye diseases was necessary. 40. On 3 August 2007, in reply to a request from the hospital of prison IK-31, the Central Clinic of Syktyvkar informed the prison hospital that the applicant had been under the medical supervision of an endocrinologist, an ophthalmologist and a neuro-pathologist since 1997 on account of insulindependent diabetes, diabetic cataracts, diabetic retinopathy and encephalopathy of mixed genesis. 41. On 4 September 2007 the applicant was examined by an ophthalmologist again. The latter reiterated that the applicant could undergo elective surgery to remove the cataract from his left eye and to implant an intraocular lens in facilities under the authority of the Ministry of Health. 42. On 11 June 2008 the applicant was again examined by an ophthalmologist, who prescribed therapeutic treatment and scheduled the next examination three months later. 43. On 15 July 2008 prison IK-31 sent a request to the Gaaza prison hospital in St Petersburg to admit the applicant for further examination in order to decide whether cataract surgery was possible and, in the event of a negative answer, to provide recommendations as to his treatment or release on parole. 44. On 20 August 2008 the Gaaza prison hospital in St Petersburg replied that it could not grant the request as it did not comply with the applicable regulations. In particular, important information concerning the applicant’s condition and his consent to the treatment was missing. 45. On 29 September 2008 prison IK-31 sent the same request to the Gaaza prison hospital in St Petersburg. 46. In a letter of 6 October 2008 the same authority replied to a letter from the applicant’s mother complaining of the applicant’s poor medical treatment. The reply stated, in particular, that in connection with the deterioration of the applicant’s eyesight, the prison authorities had sought his admission to the Gaaza prison hospital in St Petersburg but that their request had been refused. It went on to say that on 2 October 2008 the applicant had been sent to another prison medical institution for examination, and that thereafter another request would be sent to the Gaaza prison hospital in St Petersburg for his admission there. 47. Also on 6 October 2008 the applicant was examined by an endocrinologist, who stated that he needed cataract surgery. 48. According to the applicant, by autumn 2008 his eyesight had deteriorated to the extent that it was recommended that he use a walking stick when moving about the prison facility, even though that was usually prohibited to convicted persons under the relevant regulations. 49. On 5 November 2008 prison IK-31 sent another request to the Gaaza prison hospital in St Petersburg to admit the applicant for further examination in order to decide whether cataract surgery was possible. 50. On 18 December 2008 the Gaaza prison hospital in St Petersburg informed prison IK-31 that it could admit the applicant for examination and treatment. It stated that, given the term of the applicant’s imprisonment and the time required to travel from the place of his detention or residence to the hospital, he should arrive at the hospital no later than 15 January 2009. 51. On 30 December 2008 the applicant refused in writing to be transferred to the Gaaza prison hospital in St Petersburg for surgery on the following grounds: (i) he had not been offered medical assistance during his transfer and was afraid to go on his own as he could not see; and (ii) only sixty-nine days remained until the expiry of his sentence. 52. On the same date the prison authorities acknowledged in writing receipt of the applicant’s refusal. They also stated that the applicant’s state of health allowed him to be transferred to St Petersburg, that he could take care of himself, and that his refusal was groundless. 53. On 16 January 2009 the FSIN informed the applicant that arrangements for transferring him to the Gaaza prison hospital had been suspended owing to his refusal. 54. However, in February 2009 the applicant’s mother asked the prison authorities to place the applicant in the Gaaza prison hospital in St Petersburg. In connection with her request, three prison doctors talked to the applicant on 4 and 5 February 2009 and tried to persuade him to give his consent to be transferred to St Petersburg. The applicant said that he would consider it and withheld his consent for the time being. A decision in that respect was therefore postponed. 55. Nevertheless, on 6 February 2009 prison IK-31 sent another request to the Gaaza prison hospital to admit the applicant for cataract surgery. The applicant eventually refused to be transferred to St Petersburg. 56. Between 8 December 2006 and 6 March 2009 the applicant remained in prison pursuant to a court judgment of 8 December 2006. On several occasions during that period he sought release on parole on medical grounds. 57. On 5 February 2008 the applicant lodged a request for release on parole, referring, inter alia, to his poor health and the need for medical treatment, in particular, surgery in respect of his eye diseases. 58. In a decision of 4 April 2008 the Ust-Vymskiy District Court of the Republic of Komi (“the District Court”) rejected the applicant’s request. It referred to his negative characteristics as cited by the prison authorities and stated that his diseases did not constitute grounds for his release on parole, as they did not prevent him from serving his sentence. 59. On 30 May 2008 the Supreme Court of the Republic of Komi upheld the first-instance decision following an appeal by the applicant. 60. On 18 November 2008 the applicant lodged another request for release on parole. He pointed out, in particular, that he had diabetes and complicated diabetic cataracts in both his eyes, and that surgery in the latter respect had been recommended to him in 2006. The applicant also stated that his eyesight had significantly deteriorated during the period of his imprisonment. 61. On 23 January 2009 the District Court rejected the applicant’s request, stating that his diseases were not on the list of diseases approved by a relevant governmental decree, which precluded the serving of a sentence in the form of imprisonment. 62. On 20 March 2009 the Supreme Court of the Republic of Komi upheld that decision following an appeal by the applicant.