CASE OF KOZHOKAR v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domesic remedies);Remainder inadmissible;Violation of Art. 13;Violations of Art. 3 (substantive aspect);Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1980 and is currently serving a prison sentence in correctional colony no. 7 in the Tula Region. 6. In 2002 the applicant was convicted of drug trafficking and sentenced to seven years and three months' imprisonment. In 2005 he was granted an early release. 7. In the summer of 2006 the police received an anonymous complaint stating that the applicant and his friend Mr O. were making and selling drugs in their flats. The police questioned the applicant's neighbours, who confirmed unanimously that the applicant and Mr O. were drug dealers. 8. The police made a series of test purchases of drugs from the applicant and Mr O. In September and early October 2006 two persons code-named “Shadow” and “Yermak” asked the applicant and Mr O. to make drugs for them. They went on several occasions to Mr O.'s flat accompanied by their acquaintance Ms G. The applicant and Mr O. made opium from the ingredients bought by the applicant with Shadow's and Yermak's money. They then consumed the opium together. 9. On 18 October 2006 Yermak called the applicant, complained of withdrawal symptoms and asked him to procure him drugs. The applicant asked Ms G. to take 500 Russian roubles from Yermak and to change it in a nearby pharmacy. He then bought opium ingredients with that money and made opium in his flat. He met Yermak several hours later, handed a part of the opium over to him and left the remainder for himself. Yermak gave the opium received from the applicant to the police. 10. On the same day the applicant was arrested and charged with drug trafficking. 11. During the trial the Proletarskiy District Court of Tula heard numerous witnesses, including Shadow, Ms G., the applicant's neighbours and the police officers who had supervised the test purchases. Yermak's pre-trial depositions were read out as he had died before the start of the trial. The trial court also examined expert opinions and material evidence, such as the opium received by Shadow and Yermak from the applicant and Mr O. and utensils for making opium found in the applicant's and Mr O.'s flats. 12. On 19 September 2007 the Proletarskiy District Court of Tula acquitted the applicant of drug trafficking in respect of the episodes of September and early October, finding that on those occasions he had made drugs for personal consumption with his acquaintances rather than for sale. It further convicted the applicant of drug trafficking for selling drugs on 18 October 2006. The applicant was sentenced to seven years' imprisonment. 13. On 12 December 2007 the Tula Regional Court upheld the judgment on appeal. 14. From 20 October 2006 to 27 December 2007 the applicant was held in remand centre no. IZ-71/1 in Tula. 15. According to certificates of 23 October 2009 issued by the remand centre administration and submitted by the Government, from 20 October to 13 November 2006 the applicant was held in cell no. 77, which measured 80.4 sq. m and housed thirty-one to forty inmates. From 13 November 2006 to 31 January 2007 he was held in cell no. 76, which measured 37.4 sq. m and housed thirteen to twenty inmates. From 31 January to 26 September 2007 he was held in cell no. 17, measuring 76.9 sq. m and housing twenty-two to forty inmates. The Government also produced the plan of those cells confirming the cell measurements. 16. The same certificates state that the inmates were allowed to take a shower once a week for forty minutes and had an hour-long daily walk. It was not possible to establish the frequency of family visits or of the applicant's meetings with counsel. The applicant was also frequently taken out of the cell to see a doctor. Inmates suffering from infectious diseases, such as scabies, tuberculosis, HIV, hepatitis or sexually transmittable diseases, were held separately from other inmates. The applicant was never held together with anyone suffering from scabies or tuberculosis. 17. According to the applicant, he was held in cells nos. 77, 76, 17 and 117. Cell no. 77 measured 48 sq. m. It was equipped with fifty bunks and housed forty-four to forty-seven inmates. Cell no. 76 measured 24 sq. m, was equipped with twenty bunks and housed thirty to forty-seven inmates. Cell no. 17 measured 48 sq. m. It was equipped with forty-two bunks and housed twenty-seven to fifty-eight inmates. As the number of bunks was often insufficient, inmates had to take turns to sleep. Punishment cell no. 117, where the applicant was held alone from 2 to 17 February 2007, measured 2 sq. m. 18. All cells were insufficiently lit. There was only one 50-watt light bulb in each cell. The windows were small. Some of them were broken and inmates had to cover the holes with cloth. There was no forced ventilation and it was extremely hot in summer and very cold in winter. The cells were stuffy and smoky. 19. Each cell was equipped with a lavatory bowl which had no flush system. This was not separated from the living area and the person using the toilet was in view of the other inmates. The dining table was very close to the toilet. 20. The cells swarmed with rats, bugs, lice, spiders and cockroaches. The walls were covered with mould. Articles of hygiene were sparse. The bedding was dirty and ragged. All complaints to the detention facility administration about poor sanitary conditions went unanswered. 21. The applicant shared his cell with persons suffering from tuberculosis and scabies. He allegedly contracted scabies while in IZ-71/1. 22. Inmates were allowed to take a shower once a week. The entire cell population was taken to the shower hall for a total of twenty or thirty minutes. There were only four shower stands and the inmates had insufficient time to shower. 23. The food was insipid. There was neither fruit nor meat. Vegetables were rarely served. Fish was served in small quantities of no more than 40 grams per person per day. Although the applicant was prescribed a special diet by a doctor, no special food was provided. 24. The applicant submitted written statements by his co-detainees confirming his description of the conditions of detention. 25. The applicant attempted to lodge complaints about the appalling conditions with the prosecutor of the Tula region and the head of the penitentiary department of the Tula region. The remand centre administration did not dispatch his complaints. The warders threatened that he would suffer if he attempted to complain again. He was then put in a punishment cell for ten days. 26. It appears from the decision of 2 February 2007 issued by the acting head of remand centre no. IZ-71/1 that the applicant was put in a punishment cell for wrenching the tap off a drinking water tank and using it to make a hole in the wall through which he communicated with the inmates in the neighbouring cell. 27. The applicant also alleged that during the trial he had been regularly transported to the courthouse in inhuman conditions. 28. According to a certificate of 23 October 2009 issued by the remand centre administration and submitted by the Government, remand centre no. IZ-71/1 in Tula, where the applicant was held from 20 October 2006 to 27 December 2007, had a medical unit. The medical staff consisted of a general physician, a specialist in skin and venereal diseases, a surgeon, an otolaryngologist, a dentist, a radiologist, a tuberculosis specialist, physician assistants and nurses. The unit had all the necessary equipment and medication. 29. On 23 October 2006 the applicant was examined by a physician. He informed the doctor that he had been HIV-positive since 1999 and that he was also infected with hepatitis B and C viruses. On the same day he was examined by a psychiatrist who diagnosed him with drug withdrawal syndrome. An HIV antibody blood test confirmed that the applicant was indeed HIV-positive. A chest photofluorography was also performed. 30. On 13 November 2006 the applicant was examined by a drug addiction specialist from an HIV medical unit. He noted that the disease had attained clinical stage 3, but that the applicant's state of health was satisfactory. He prescribed a special diet. He further recommended that the applicant be held in a special cell for HIV-positive inmates and that general blood and urine tests and chest photofluorography be performed every six months. 31. On 23 January 2007 the applicant was examined by a psychiatrist. He complained of headache and liver pain. The doctor prescribed a pain reliever and liver pills. 32. On 7 March 2007 the applicant was examined by a nurse. He complained of liver pain. The nurse prescribed hepatoprotective herbal pills and antispasmodic pills. 33. On 23 March 2007 the applicant was examined by a surgeon. On 27 March 2007 a chest photofluorography was performed. 34. On 9 April 2007 general blood and urine tests were performed. 35. On 20 April 2007 a hepatitis C antibody blood test confirmed that the applicant was suffering from chronic hepatitis C. 36. On 22 April 2007 the applicant was examined by a psychiatrist. 37. On 25 April 2007 CD4, CD8 and viral load tests were made. The applicant's CD4 count was 0.462 x 109/l (equivalent to 462 cells/mm3), while his HIV RNA (viral load) was 9,215 copies/ml. 38. On 8 June 2007 a nurse explained to the applicant the results of the CD4 and viral load tests. 39. On 22 August 2007 the applicant was examined by a general physician. He complained of pain in his left shoulder joint. He was diagnosed with arthrosis and prescribed anti-inflammatory treatment. 40. On 26 September 2007 a chest photofluorography was performed. 41. On 24 October 2007 CD4 and viral load tests were made for the second time. The applicant's CD4 count was 0.231 x 109/l (equivalent to 231 cells/mm3), while his HIV RNA (viral load) was 5,282 copies/ml. 42. On 25 October 2007 the applicant was diagnosed with dermatitis and prescribed treatment for dermatitis and hepatoprotective pills. 43. On 30 October 2007 the applicant complained about insomnia and was prescribed sleeping pills. 44. At the end of 2007 a treatment schedule for 2008 was prepared. It was recommended that the applicant should be examined twice a year by a general physician, a tuberculosis specialist and an infectious disease specialist. Chest photofluorography and abdominal ultrasound scans were to be performed twice a year and the applicant was to receive a special diet. 45. On 27 December 2007 the applicant was examined by a general physician before being transferred to the correctional colony. The examining doctor confirmed the previous diagnosis. On the same day the applicant was transferred to correctional colony no. 7 in the Tula region. 46. On 17 January 2008 general blood and urine tests were performed. 47. On 20 February 2008 the applicant was examined by the colony's physician assistant. He noted that the applicant's health was satisfactory, his skin was healthy and the lymph nodes were not enlarged. 48. On 22 February 2008 the applicant was admitted to the prison hospital of the Tula region (no. IK-2, hereafter “Tula prison hospital”). He was examined by a neuropathologist and an ophthalmologist and underwent an abdominal ultrasound scan and a general blood test. The doctors prescribed anti-inflammatory treatment for arthrosis, hepatoprotective pills and vitamins. 49. On 27 February 2008 CD4 and viral load tests were performed. The applicant's CD4 count was 0.447 x 109/l (equivalent to 447 cells/mm3), while his HIV RNA (viral load) was 3,377 copies/ml. 50. The applicant was discharged from hospital on 28 February 2008. 51. On 6 March 2008 the applicant was examined by the colony's physician assistant. He complained of an aching shoulder joint and liver pains. The physician's assistant noted that the applicant's health was satisfactory. 52. On the same day the applicant was examined by a psychiatrist who diagnosed him with heroin addiction in forced remission. 53. On 16 June 2008 the applicant complained of dizziness. He was examined by a nurse who diagnosed him with low blood pressure and prescribed vitamins. 54. On 15 September 2008 the applicant was again examined by the colony's physician assistant. The applicant again complained of liver pain and an aching shoulder joint. The physician assistant noted that the applicant's gall bladder was deformed but his health was otherwise satisfactory. 55. On 31 October 2008 the applicant again complained of an aching shoulder joint. He was prescribed pain relievers. 56. On 7 November 2008 the applicant was admitted to the surgery unit of Tula prison hospital. His shoulder joint was X-rayed and general blood and urine tests were made. He was diagnosed with arthrosis and prescribed pain relievers and physiotherapy. 57. On 14 November 2008 the applicant was discharged from hospital. 58. At the end of 2008 a treatment schedule for 2009 was prepared. It was noted that the applicant's HIV condition had attained clinical stage 3. It was recommended that the applicant be examined twice a year by a general physician, a tuberculosis specialist and an infectious disease specialist. He was also to undergo laboratory examinations twice a year, and chest photofluorography and abdominal ultrasound scans were to be performed twice a year. The applicant was also to receive a special diet. 59. On 12 February 2009 the applicant was granted disability status. 60. On 19 February 2009 the applicant was examined by the colony's physician assistant, who found that his health was satisfactory. 61. On 24 September 2009 the applicant was again examined by a physician assistant, who prescribed treatment for a respiratory infection and gum inflammation. 62. On 22 October 2009 the applicant was examined by a physician. He complained of fever, abdomen pains, cough, headache and heartburn. He was prescribed antibacterial pills. 63. On 23 October 2009 general blood and urine tests were made. 64. On 10 November 2009 the applicant was taken to Tula prison hospital for examination. He was examined by an ophthalmologist, a surgeon, a neuropathologist, a dentist, a psychiatrist and a general physician. He underwent general blood and urine tests, an ultrasound scan of the abdominal area and an electrocardiogram. He received vitamins and neuroleptic drugs. 65. On 11 November 2009 CD4 and viral load tests were performed. The applicant's CD4 count was 0.562 x 109/l (equivalent to 562 cells/mm3), while his HIV RNA (viral load) was 7,845 copies/ml. 66. On 20 November 2009 the applicant was discharged from hospital. 67. At the end of 2009 a treatment schedule for 2010 was prepared. It was recommended that the applicant be examined twice a year by a physician, a tuberculosis specialist and an infectious disease specialist. Chest photofluorography, abdominal ultrasound scans and gastro-duodenoscopy were to be performed twice a year and the applicant was to receive a special diet. 68. On 28 January 2010 the applicant was again taken to Tula prison hospital for examination. He was examined by an ophthalmologist, a surgeon, a neuropathologist, a dentist, a psychiatrist, a dermatologist and an otolaryngologist and underwent an ultrasound scan of the abdominal area and a chest photofluorography. General blood and urine tests were also made. He received vitamins and physiotherapy. He was discharged on 10 February 2010. The hospital doctors recommended treatment for arthritis and gall bladder deformation and regular supervision by a general physician and a psychiatrist. 69. On 25 February 2010 the applicant was examined by a physician assistant, who found that his condition was satisfactory. 70. On 10 March 2010 a hepatitis B antibody blood test was performed which established that the applicant did not have hepatitis B. 71. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 72. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees without exception. In particular, section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee. On arrival at a detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. Particular attention must be paid to individuals suffering from contagious conditions. No later than three days after the detainee's arrival at the detention facility, he should receive an in-depth medical examination, including fluorography. During the in-depth examination a doctor should record the detainee's complaints, study his medical and personal history, record injuries if present, and recent tattoos, and schedule additional medical procedures if necessary. A doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 73. Subsequent medical examinations of detainees are performed at least twice a year or at the detainees' request. If a detainee's state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee's medical history. The detainee should be fully informed of the results of the medical examinations. 74. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake. 75. Section X of the Regulation regulates medical examinations, monitoring and treatment of detainees suffering from HIV. In particular, it provides that medical examinations, monitoring and treatment of detainees infected with HIV should be performed in accordance with the general standards of medical assistance to HIV-positive patients. All HIV-positive detainees should be registered and their condition should be monitored regularly to secure timely diagnosis and treatment of diseases that may accelerate the progression of the HIV infection, timely identification of symptoms of such progression and timely prescription of specific therapy. During the initial examination of an HIV-infected detainee a doctor must confirm his HIV status, identify the clinical stage of the disease, detect possible opportunistic infections and set up an adequate course of treatment. The frequency of subsequent medical examinations depends on the clinical stage of the disease and the detainee's CD4 count. A detainee in clinical stage 3 of the disease and with a CD4 count exceeding 500 cells/mm³ must be examined by a doctor every twenty-four weeks, while a detainee in clinical stage 3 of the disease with a CD4 count lower than 500 cells/mm³ must be examined by a doctor every twelve weeks. 76. Order no. 474, on Standard medical assistance to persons infected with HIV, issued by the Ministry of Health and Social Development on 9 July 2007, provides that a person infected with HIV must be subjected to the following tests and examinations in particular, irrespective of the clinical stage of the disease: - abdominal ultrasound scan twice a year; - electrocardiography twice a year; - chest photofluorography once or twice a year; - a general blood test three or four times a year; - a general urine test once a year; - psychology consultation six times a year; - HIV RNA (viral load) test twice a year; - CD4 test four times a year. 77. World Health Organization (“WHO”) guidelines of 2006 “Antiretroviral therapy for HIV infection in adults and adolescents: recommendations for a public health approach” read as follows: “4.2. Immunological assessment of HIV-infected adults and adolescents The optimum time to commence ART [antiretroviral therapy] is before patients become unwell or present with their first opportunistic infection. Immunological monitoring (CD4 testing) is the ideal way to approach this situation. A baseline CD4 cell count not only guides the decision on when to initiate ART but is also essential if CD4 counts are to be used to monitor ART. Table 3 summarizes the immunological criteria for the initiation of ART. Table 3. CD4 criteria for the initiation of ART in adults and adolescents ... The benchmark threshold marking a substantially increased risk of clinical disease progression is a CD4 cell count of 200 cells/mm3. Although it is never too late to initiate ART, patients should preferably begin the therapy before the CD4 cell count drops to or below 200 cells/ mm3. The optimum time to initiate ART with a CD4 cell count of 200−350 cells/mm3 is unknown. Patients with CD4 cell counts in this range require regular clinical and immunological evaluation. The treatment of patients with WHO clinical stage 4 disease should not depend on a CD4 cell count determination: all such patients should initiate ART. For WHO clinical stage 3 conditions, a threshold of 350 cells/ mm3 has been identified as a level below which functional immune deficiency is present and ART should be considered... For patients with clinical stage 1 or 2 disease, a CD4 count below 200 cells/mm3 is a clear indication for treatment. Although there are no randomized trial data on the CD4 cell count level at which to start therapy in asymptomatic persons, data from a number of cohorts have been consistent in demonstrating that disease progression is greater in persons who start antiretroviral therapy with CD4 counts below 200 cells/mm3 than in those starting therapy above this level. In general these studies have not been able to detect a difference in outcome between persons who start therapy at CD4 counts of 200−350 cells/mm3 and those who do so at CD4 counts above 350 cells/mm3. However, if the CD4 count is above 350 cells/mm3, ART should be delayed... Table 4. Recommendations for initiating ART in adults and adolescents in accordance with clinical stages and the availability of immunological markers ... 4.3. Virological assessment of HIV-infected adults and adolescents Plasma viral load measurement is not necessary before initiating ART. It rarely informs the clinical decision as to when ART should begin if both CD4 testing and the assessment of clinical staging are performed... 13. Considerations in hepatitis B or hepatitis C coinfection ... In the setting of HIV infection the course of HCV [hepatitis C]-associated liver disease is accelerated. Rates of progression of liver disease in HIV/HCV coinfection are greater. ... there is contradictory evidence on the effects of HCV on HIV disease progression. In the Swiss cohort study the presence of HCV was independently associated with an increased risk of progression to AIDS and death. However, the EuroSIDA cohort analysis found that the overall virological and immunological responses to ART were not affected by HCV serostatus... However, the risk of mortality related to liver disease was markedly increased in HCV-seropositive patients... Irrespective of whether a patient has HIV infection, the optimal treatment for hepatitis C virus infection is pegylated interferon alpha and ribavirin (RBV)... The initiation of ART in HIV/HCV-coinfected patients should follow the same principles and recommendations as for the initiation of ART in HIV-monoinfected patients. However, the patients should be followed up more closely because of the major risk of drug-related hepatotoxicity and for specific drug interactions of some ARVs with anti-HCV drugs... In patients with high CD4 cell counts it is preferable to treat HCV infection before HIV. While concurrent treatment of both infections is feasible, it may be complicated by pill burden ..., drug toxicities and drug interactions. In patients who need ART it may be preferable to initiate ART and delay HCV therapy in order to obtain better anti-HCV response rates after immune recovery... 15. Clinical and laboratory monitoring ... Clinical and laboratory monitoring of HIV-infected patients serves two purposes. Firstly, for patients under care who are not yet eligible for ART, regular monitoring is essential for the identification of the point at which they become eligible for ART or for prophylaxis against opportunistic infections... Well-designed monitoring protocols can facilitate the initiation of [opportunistic infections] prophylaxis and ART in the majority of HIV-infected patients before they develop advanced HIV infection. Secondly, once patients have been initiated on ART, regular monitoring is necessary to assess efficacy, manage side-effects and identify treatment failure... Because resources are limited, laboratory testing should generally be directed by signs and symptoms and should be done only when the results can be used to guide management decisions. Exceptions are the recommendations to obtain a CD4 cell count every six months... 15.2. Monitoring of patients who are not yet eligible for ART Patients who are not yet eligible for ART should be monitored for clinical progression and by CD4 count measurement every six months. Clinical evaluation should include the same parameters as are used in baseline evaluations, including weight gain or loss and development of clinical signs and symptoms of progressive HIV disease. These clinical parameters and the CD4 cell count should be used to update the WHO disease stage at each visit and to determine whether patients have become eligible for [opportunistic infections] prophylaxis or ART. Clinical evaluation and CD4 counts can be obtained more frequently as the clinical or immunological threshold for initiating ART approaches (Table 4)...” 78. On 30 November 2009 WHO published a document entitled “Rapid Advice: Antiretroviral Therapy for HIV Infection in Adults and Adolescents”. It revised the previous recommendations concerning the commencement of antiretroviral treatment contained in the 2006 guidelines. It strongly recommended that antiretroviral treatment be started in all patients with HIV who had a CD4 count lower than 350 cells per mm3 irrespective of clinical symptoms. It stressed the necessity of CD4 testing in identifying whether HIV-positive patients at WHO clinical stage 1 or 2 of the disease needed to start antiretroviral treatment. Furthermore, it strongly recommended that antiretroviral treatment be started in all patients with HIV at WHO clinical stage 3 or 4 irrespective of CD4 count. 79. The same recommendations are contained in the WHO's 2010 guidelines “Antiretroviral therapy for HIV infection in adults and adolescents: recommendations for a public health approach”.