CASE OF IBRAGIMOV v. RUSSIA
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
6. The applicant was born in 1953 and lives in Katyr-Yurt, the Chechen Republic. He is the father of Mr R., who died of tuberculosis in a prison hospital. 7. In 2004 Mr R. arrived at correctional colony no. 4 in the Arkhangelsk Region where he was to serve his twelve-year sentence. On admission to that facility, he underwent a general medical check-up permed by a prison doctor who concluded that he was healthy. Two routine chest X-ray examinations in March and October 2004 confirmed that conclusion. 8. On 10 March 2005 Mr R. complained to the prison medical authorities of fatigue and a cough. Acute rhinopharyngitis was diagnosed and a standard treatment for that condition was prescribed, but the symptoms persisted. Eleven days later, the prison doctor diagnosed acute pneumonia of the left lung. Mr R. was admitted to the prison medical unit and prescribed medication and a special dietary regime. 9. On 6 April 2005, in view of the absence of any positive changes in Mr R.’s health, he was moved to a prison tuberculosis hospital. A chest Xray examination performed on the day of his admission showed a massive infiltration in the lungs. 10. The next day Mr R. underwent a sputum test, which revealed his affliction with tuberculosis combined with pneumonia. Treatment with five first-line drugs was prescribed. It was started about two weeks later, but had no effect on Mr R.’s health. 11. On 12 April 2005 a drug susceptibility test was performed. The test result was only received on 18 July 2005 (see paragraph 15 below). An additional chest X-ray examination on 18 April 2005 indicated further progress of the diseases. 12. In the light of the above, on 23 April 2005 Mr R. was transferred to the Arkhangelsk regional prison tuberculosis hospital (“regional prison hospital”), where his treatment continued as previously prescribed. 13. According to the applicant, Mr R. was unsatisfied with the quality of his treatment. In early May 2005 both the applicant and Mr R. unsuccessfully sought the latter’s transfer to a medical facility located in a southern region, where Mr R. could have been provided with adequate treatment in a more suitable climate. 14. In the meantime, regular chest X-ray examinations showed that Mr R.’s health was continuing to deteriorate. By mid-July 2005 pulmonary cavities had appeared, and his condition had become serious. 15. On 18 July 2005 the regional prison hospital received the result of the drug susceptibility test of 12 April 2005. It revealed that Mr R.’s tuberculosis was resistant to four antibiotics being used in his treatment. 16. According to a medical entry made at the top of a page outside the related fields in Mr R.’s medical file, on 28 July 2005 he was prescribed treatment with advanced antibiotics. There are no regular entries showing the actual intake of the new drugs. 17. In August 2005 Mr R.’s condition was assessed as “of medium gravity”, but on 10 September 2005 he died. According to an autopsy report drawn up two days later, the cause of death was cardio-respiratory insufficiency provoked by tuberculosis. 18. In September 2006 the applicant asked for criminal proceedings to be instituted into the circumstances leading to his son’s death. He alleged that the authorities responsible for protecting the life and wellbeing of his son had failed to comply with their obligations. 19. On 21 October 2006 the Primorskiy Inter-District Prosecutor’s Office refused to open a criminal case. Its page-long decision was based on the autopsy report and general information on Mr R.’s treatment submitted by the prison medical authorities. The investigator concluded that Mr R. had died of tuberculosis for which he had received medical treatment, and that the patient’s detention in a northern region had not breached Russian law. 20. In November 2006 the applicant repeated his request, having argued that the custodial authorities bore responsibility for his son’s death because they had failed to protect him from tuberculosis and to ensure prompt diagnosis of the disease. 21. By a letter of 9 January 2007 a prosecutor informed the applicant that a criminal inquiry had established that his son had contracted tuberculosis in early March 2005. The correctional colony had promptly identified the disease and had ensured treatment keeping the disease under control. The investigating authorities did not assess the quality of the medical services provided between late April and September 2005. 22. The applicant appealed against the decision of 21 October 2006, insisting that the investigator’s finding had not been supported by expert evidence. He further argued that the detention authorities had failed not only to diagnose his son’s tuberculosis promptly, but also to provide him with adequate care in the regional prison hospital. 23. On 3 July 2007 the Isakogorskiy District Court of Arkhangelsk examined the claim. Ms B., the head of the regional prison hospital’s unit responsible for Mr R.’s treatment, was heard. She stated that Mr R. had been admitted to the hospital on 23 April 2005. Shortly thereafter he had undergone medical testing. Ms B. stressed that the testing had been complex and that the hospital had only received the test result in August 2005. On 26 August 2005 the doctors had learned that Mr R.’s tuberculosis had been drug resistant. They had prescribed treatment with advanced antibiotics. However, by that time pathological changes in the patient’s body had already become irreversible. 24. Having regard to the investigation file, the court noted that the investigating authorities had solicited neither the autopsy report nor medical documents concerning Mr R.’s treatment and that they had not interviewed any doctor involved in the treatment. The court thus concluded that the criminal inquiry had not been thorough. It overruled the prosecutor’s decision of 21 October 2006 not to open a criminal case. 25. On 14 August 2007 the Arkhangelsk Regional Court quashed the District Court’s decision on appeal. It noted that it was not for the investigative authorities to assess all possible versions of the events and that there was no obligation on them to resolve each inconsistency in the case. The court found that the documents obtained by the firstinstance court and the statement by Ms B. had remedied the alleged shortcomings in the investigation. The case was remitted to the District Court for a fresh examination. 26. Ten days later the District Court re-examined the case. It concluded that the criminal inquiry had been carried out in compliance with the requirements of the Russian Code of Criminal Procedure, and that the impugned decision of 21 October 2006 had been based on sufficient evidence duly assessed by the investigating authorities. The applicant’s claim was accordingly rejected. 27. On 23 November 2007 the Regional Court upheld the abovementioned decision on appeal.