CASE OF KONDRULIN v. RUSSIA
Violation of Article 34 - Individual applications;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
6. The applicant was born in 1953 and lived in Magnitogorsk, in the Chelyabinsk Region until his arrest. 7. On 28 June 2011 the applicant was arrested on suspicion of having committed a criminal offence. He remained in custody throughout the investigation and trial. 8. On 29 March 2012 the Pravoberezhniy District Court of Magnitogorsk sentenced him to thirteen years and ten months’ imprisonment. The sentence was upheld on appeal by the Chelyabinsk Regional Court on 16 August 2012. 9. In 2012, following a complaint by the applicant of pain in his lower abdomen, he was diagnosed with an enlarged prostate gland and underwent surgery in relation to that condition. 10. In April 2013 the applicant was transferred to the prison tuberculosis hospital in Chelyabinsk for testing of his urogenital system. Two operations were performed in the hospital, but various problematic symptoms relating to his urinary system persisted. 11. In February 2014 a biopsy of prostate tissue revealed the presence of cancer cells. The applicant was diagnosed with terminal prostate cancer which had spread to his liver and inguinal lymph nodes. His condition was aggravated by a wasting syndrome and paraneoplastic syndrome. 12. According to the applicant, he did not have access to the required medication in the hospital, and therefore his condition worsened. 13. On 30 October 2014 a medical panel confirmed his diagnosis, adding a list of secondary illnesses to it. The doctors concluded that the applicant’s medical condition made him eligible for early release. 14. On 26 January 2015 the Metallurgicheskiy District Court of Chelyabinsk “the District Court” examined the applicant’s request for early release on health grounds. In the proceedings the applicant was represented by Mr A. Lepekhin, a lawyer from Agora. 15. At the hearing the doctor who was treating the applicant testified that his condition had significantly deteriorated since the beginning of 2014. He received painkillers in hospital, but effective medical treatment was unavailable, owing to a lack of the required medication. 16. The acting head of the hospital stated that the applicant could only receive adequate medical treatment in another hospital. 17. The prosecutor opposed the applicant’s being released, citing his failure to reform while in detention. He also stated that the release was not necessary, as the applicant could receive the required medical treatment within the prison system. 18. The court rejected the applicant’s request for release. It found that he had failed to improve himself, that is to say, the aim of reforming him as a prisoner had not been achieved. His medical condition did not preclude further detention, as the requisite medical treatment was available within the prison system. To receive it, the applicant only needed a transfer to a different hospital. 19. On 7 April 2015 the Chelyabinsk Regional Court upheld the above decision on appeal, having fully endorsed the reasoning of the lower court. It also noted that, in addition to pain relief and therapy to relieve symptoms, the applicant could have chemotherapy, should the prison hospital receive the required medication. 20. In the meantime, on 26 March 2015 the applicant sought interim measures from this Court under Rule 39 to ensure adequate medical treatment or his release from detention. 21. On 27 March 2015 the Court decided to apply Rule 39, indicating to the Government that it was desirable in the interests of the proper conduct of the proceedings that the applicant should be immediately examined by medical experts who were independent of the prison system, with a view to determining: (1) whether the treatment he was receiving in the prison hospital was adequate with regard to his condition; (2) whether his state of health was compatible with detention in prison hospital conditions; and (3) whether his condition required his placement in a specialist, possibly civilian, hospital. Furthermore, the Government were also to ensure his transfer to a specialist hospital, should the medical experts conclude that he required it. 22. On 9 April 2015 the Government responded to the Court’s letter of 27 March 2015, asserting that the scope and quality of the applicant’s medical treatment in the prison hospital corresponded to his needs. They alleged that, owing to the gravity of the applicant’s condition, only treatment of his symptoms was recommended, and such treatment was being provided in full. They submitted the following documents: a typed copy of the applicant’s medical file; certificates from detention facilities summarising the applicant’s treatment and describing his state of health; a report by a medical panel of 30 October 2014 confirming his eligibility for early release; a copy of the District Court’s decision of 26 January 2015; a statement by the acting head of the hospital in which he noted that the District Court had misinterpreted his testimony given on 26 January 2015, as he had never discussed the possibility of the applicant being treated in another hospital; and a statement by the head of the prison hospital in which he confirmed that the cancer treatment was only possible in a special oncological centre, and that he had never argued that it was accessible within the prison system. 23. On 28 May 2015 the applicant’s lawyer submitted that the Government had not made arrangements for the independent medical examination indicated by the Court to be carried out. However, two independent doctors summoned by the applicant’s lawyer had assessed the quality of his medical treatment in detention and the compatibility of further detention in the prison hospital with his state of health. In an expert report dated 23 May 2015 the doctors had concluded that the treatment the applicant was receiving in the prison hospital was inadequate. The belated diagnosis of prostate cancer and the failure to provide active treatment, such as glandular therapy, radiation therapy or surgery were mentioned among other major shortcomings on the part of the medical authorities. The doctors had also noted that the applicant could not be provided with adequate medical treatment in the prison hospital, because it had no licence for inpatient treatment of cancer patients and urological diseases. Accordingly, the experts had concluded that his detention in that facility did not correspond to his medical needs, and threatened his life. 24. Over the following months the applicant’s health continued to deteriorate, and the wasting syndrome progressed. 25. On 24 August 2015 the medical panel prepared a new report, again recommending the applicant’s early release on health grounds. A court hearing on the matter was scheduled for 11 September 2015. Four days before that date the applicant died of cancer. 26. At the request of the applicant’s lawyer, Mr A. Lepekhin, the Investigative Committee carried out a preliminary inquiry into the circumstances surrounding the applicant’s death, which ended with a decision of 15 October 2015 not to open a criminal case.