CASE OF GORELOV v. RUSSIA
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1965 and lived until his arrest in the village of Sushzavod, in the Novosibirsk Region. He is serving a sentence in a correctional colony in the town of Raisino, in the Novosibirsk Region. 6. Arrested in August 2007 on suspicion of aggravated robbery, the applicant was convicted on 28 January 2008 and sentenced to nine years and three months’ imprisonment. On 23 November 2011 the applicant was also convicted of aggravated fraud and sentenced to another three years. 7. On 7 February 2011 a blood test revealed that the applicant had contracted HIV. Tests conducted on previous occasions, in particular in 2009 and 2010 when the applicant was transferred to correctional colony no. 13, medical penal facility no. 10 and a temporary detention facility in the town of Barnaul, were all negative. 8. Believing that he had contracted the virus during medical procedures in detention facilities, the applicant lodged an action with the Berdsk Town Court, seeking compensation from the detention facility authorities for causing him to become HIV-positive. 9. On 16 June 2011 the Novosibirsk Regional Court, acting as a court of final instance, disallowed the action, having found that the applicant had not complied with the procedural requirements for lodging it. He did not name a public official who could have been responsible for his having contracted the virus, he did not indicate his home address, he did not pay a court fee, and so on. 10. The applicant sent a complaint to the Investigations Department of the Novosibirsk Region, asking for criminal proceedings to be instituted against detention facility personnel. He argued that he had become HIV-positive as a result of negligence on the part of the prison medical staff. 11. On 5 July 2011 a deputy head of the Department readdressed the complaint to the Novosibirsk Regional Prosecutor. 12. On 13 July 2011 the first deputy prosecutor of the Novosibirsk Region returned the applicant’s complaint to the Investigations Department of the Novosibirsk Region, informing it that there were indications of a possible criminal offence and that a thorough inquiry into the matter should be conducted. 13. Ten days later the Investigations Department redirected the applicant’s complaint to the head of the Novosibirsk regional police department, seeking an inquiry into the circumstances causing the applicant to become HIV-positive. 14. In March 2012 the applicant received a letter from a Berdsk deputy prosecutor, informing him that his request for institution of criminal proceedings against detention officers had been examined and refused on 18 June 2011. The applicant lodged a claim with the Berdsk Town Court, complaining that the investigating authorities had failed to look closely into what had caused him to contract the virus. On 2 October 2012 the Town Court discontinued the examination of the complaint, noting that on 2 October 2012 the decision of 18 June 2011 had been overturned by the investigation authorities as premature and a new inquiry had commenced. The outcome of those proceedings is unknown. 15. In December 2012 specialists from the Hygiene and Epidemics Centre of the Federal Service for Execution of Sentences conducted an inquiry for the purpose of establishing the transmission mode of the applicant’s HIV infection. They studied the applicant’s medical record and interviewed him. Having observed that the applicant had never travelled abroad, had not been a blood, tissue, organ or sperm donor or recipient, had not used drugs, had not had any sexual contacts in detention, and had not suffered from any sexually transmitted diseases apart from the HIV infection, the specialists stated that it was impossible to establish the exact way in which the applicant had contracted the virus. At the same time, they noted that in February 2009 and in 2010 the applicant had undergone invasive medical procedures in penal facilities. Those procedures were performed in response to the applicant’s self-harming. In addition, the large number of tattoos on the applicant’s body did not escape the attention of the specialists. They described the tattoos as “home-made”, and stated that the most recent one had been done in 2008. 16. The applicant submitted that after he had been diagnosed as HIV-positive his treatment had been extremely erratic and insufficient. His antiretroviral therapy included two drugs, Combivir and Stocrin. When the treatment was amended with another drug the applicant’s condition deteriorated; he began to experience loss of consciousness, dizziness and nausea. The applicant submitted that the change in the treatment had been authorised by physicians from colony no. 10. An infectious diseases specialist had not been consulted. When he was transferred to colony no. 13 the applicant asked for his previous chemotherapy regime to be reinstated, given the extremely serious side effects he was experiencing following the change in the treatment regime; CD4 cell counts were showing rapid growth in the viral load. 17. The Government provided the Court with a copy of the applicant’s medical record drawn up after his detention at the police station in the town of Cherepanovo on 16 August 2007. On the following day a blood test taken for HIV infection was negative. HIV tests on 24 August and 14 December 2007, 25 September 2008 and 26 February 2009 all produced the same result. Each test was preceded by a consultation with a prison doctor. A report was drawn up as a result. The reports showed that the applicant had denied using drugs, having sexual relations, including homosexual sexual contacts, and had had no blood transfusions. 18. On 24 February 2009 the applicant complained to a prison surgeon of severe stomach pain. He explained that on 28 December 2008 he had swallowed a long nail. An X-ray examination of the applicant’s abdominal area showed two metal nails 11.6 and 8 centimetres long respectively. He was immediately admitted to the surgical department of the prison hospital. Subsequent examinations showed no urgent need for surgery; the applicant also refused surgical treatment. After examination and treatment in the hospital the applicant was released on 18 March 2009 with one nail remaining in his body. He was to stay under supervision in the colony medical unit. 19. The applicant underwent clinical blood tests in October 2009. No HIV test was carried out on that occasion. 20. In January 2010 the applicant broke his arm and was treated in the colony medical unit with the assistance of a surgeon from the Ubinsk hospital. 21. On 16 March 2010 the applicant refused to have an HIV test. 22. In early February 2011 the applicant applied for medical assistance, complaining of coughing blood, stomach pain and dizziness. He explained that he had swallowed a ten-centimetre-long metal wire as a way of protesting against the internal rules of the colony. The applicant received treatment and was seen by a surgeon from the Iskitima town central hospital. An X-ray performed several days later showed that the wire had exited the applicant’s body. The applicant nevertheless stayed in the hospital for almost a month. A test performed in the hospital on 7 February 2011 showed that the applicant was HIV-positive. Another test on 18 February 2011 confirmed that result. 23. Following the tests the applicant consulted a psychiatrist, who explained to him the nature of the HIV infection and the methods for treating it, and warned him that knowingly transmitting it was a criminal offence. He was also told about the necessity to adhere to the antiretroviral treatment which he had not yet started receiving, and was informed of the negative consequences of stopping the treatment. The doctor also questioned the applicant about how he might have been infected with the virus. The applicant denied having sexual relations and using drugs. The doctor noted the large number of tattoos on his body. The final diagnosis given to the applicant on his release from the hospital on 15 March 2011 was HIV infection in the third stage and sub-clinical form. The doctor recommended clinical blood and urine tests, biochemical blood analysis, CD4 and CD6 cell counts, consultations with an infectious diseases specialist, and close medical outpatient supervision. 24. On 20 April 2011 the applicant cut his left forearm. A prison nurse treated the wound and made an entry in the applicant’s medical record noting her suspicion that the applicant had actually bitten his forearm and had broken the vein with his teeth. The applicant continued receiving treatment in the medical unit until the beginning of May 2011. 25. On 30 June 2011 the applicant was seen by a prison doctor, who repeated the recommendations given on 15 March 2011. 26. On 20 July 2011 another blood test confirmed the HIV infection. The applicant also tested positive for hepatitis C. 27. Between July and December 2011 the applicant was seen six times by a prison doctor following complaints of severe headaches, dizziness and nausea. He was treated for arterial hypertension. 28. In December 2011 the applicant was subjected to a number of immunological tests, including a CD4 cell count which showed slightly over 320 cells/mm3. On 21 December 2011 an infectious diseases specialist examined the applicant. Noting a decrease in the CD4 cell count and rapid growth of the viral load, the doctor recommended commencing antiretroviral therapy with Combivir, a fixed-dose combination of the drugs zidovudin (Retrovir), lamivudine (Epivir), and Stocrin (Ephavirenz). Another round of immunological testing was to be performed in a month. The doctor gave extensive information on the treatment, its schedule and its side effects. The applicant was again reminded about the negative consequences of stopping the treatment. The applicant signed a statement recording the main details of that consultation. 29. On 21 December 2011 the applicant started antiretroviral treatment. An immunological test performed on 12 January 2012 showed an increase in the viral load. The Government provided a record of the daily schedule showing the medicines taken by the applicant under the supervision of the prison nurses. 30. In January and February 2012 the applicant was seen at least once every few days by a prison doctor or nurse. In the months that followed regular medical consultations were continued. 31. Between 5 October and 28 November 2012 the applicant was in the clinical treatment ward of the prison hospital. He was given clinical blood and urine tests, visual examinations, biochemical blood analysis, chest X-rays and an electrocardiogram. He continued his chemotherapy regime, comprising antiretroviral drugs, hepatoprotectors, vitamins and antispasmodics. He was released from the hospital under active supervision by doctors from the colony medical unit. Recommendations also included the addition of two drugs, Kaletara and Fosfogliv, to the antiretroviral treatment, and immunological testing every six months. 32. When he returned to the colony the applicant complained to a prison doctor about the side effects of the new drugs, and requested in writing to be placed back on the previous treatment regime. A certificate issued by the colony director on 19 December 2012 showed that the treatment had been and was continuing to be maintained without any interruptions. The certificate also indicated that the applicant’s health had improved as a result of the antiretroviral treatment. 33. It appears from the applicant’s submissions that the most recent CD4 cell count was performed in 2013.