CASE OF PAKHOMOV v. RUSSIA
Remainder inadmissible;No violation of Art. 3
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
6. The applicant was born in 1980 and lives in the town of Artyom, Primorye Region. 7. On 27 April 2007 a group of police officers entered the applicant's flat, intending to search it. The applicant, who had been offered the opportunity to hand over any illegal substances before the search, handed the police officers 2.5 grams of tobacco and marijuana compound. No other illegal substances or money were found during the subsequent search of the flat carried out by the police. The applicant was arrested and taken to the Artyom town temporary detention centre, where a police investigator, Mr S., informed him that he had been arrested on suspicion of selling drugs to an anonymous person, whom the police called Mr I., during a policecontrolled purchase on 27 February 2007. The investigator also notified the applicant of an identification parade scheduled for the following day, in which Mr I. was to participate. 8. On 28 April 2007 the applicant was taken to the Artyom Town Department of the Federal Service for Drug Control where he remained handcuffed to a heating device for several hours. The identification parade did not take place. 9. On the same day the Artyom Town Court authorised the applicant's placement in custody for two months. He was transferred to temporary detention facility no. IZ-25/1 in Vladivostok. 10. In the middle of May 2007 the applicant was notified of another charge brought against him. The prosecution authorities accused him of selling drugs to Mr I. on another occasion, namely 9 March 2007. 11. On 11 June 2007 the police investigator, Mr S., served the applicant and his lawyer with a bill of indictment. The investigation offered the following version of events on which the charges against the applicant were grounded. According to the investigating authorities, on an unspecified date an anonymous person, whose personal data could not be disclosed and who was called “Mr I.”, approached a police officer, Mr Za., and informed the latter that he could buy drugs from the applicant. The police officer Za. decided to act on the information received from Mr I. and organised a police-controlled purchase of drugs. He invited two soldiers serving in the local military unit, Mr K. and Mr M., to act as lay witnesses during the purchase. On 27 February 2007 police officer Za., accompanied by another police officer, Mr G., two lay witnesses, Mr K. and Mr M., and Mr I., drove to the applicant's house. On arrival to the applicant's block of flats, officer Za. gave Mr I. money to purchase drugs from the applicant. Serial numbers of the bills were recorded in advance. Mr I., accompanied by Mr K., left the car and went to the applicant's flat. Mr K. did not enter the flat, waiting for Mr I. on the ground floor. Mr I. spent approximately fifteen minutes in the applicant's flat. After he had returned to the car, Mr I. handed the police officers a package containing 2.08 grams of a substance, later identified by forensic experts as a compound of tobacco and cannabis, and stated that he had bought drugs from the applicant. The investigating authorities also insisted that the same sequence of events, albeit with the participation of other lay witnesses, Mr Se. and Mr B., occurred on 9 March 2007. 12. On 16 October 2007 the applicant's lawyer recorded a conversation with a Mr A., who insisted that he could identify Mr I. According to Mr A., in the middle of March 2007 he had met with the person identified as Mr I. The latter had told Mr A. that he had framed the applicant in a drug case. According to Mr I., the police had arrested him when he was carrying drugs and as a result he had been forced to participate in two police-controlled drug purchases. Mr I. allegedly explained that he had kept the money which the police officers had given him for drug purchases and in return he had allegedly given the police officers drugs which he had hidden in advance behind a heating device in the hall near the applicant's flat. 13. On 14 December 2007 the Artyom Town Court found the applicant guilty of two counts of attempted drug trafficking and one count of drug possession, and sentenced him to eight years' imprisonment. The conviction was based on the following evidence: - statements by Mr I., given during the pre-trial investigation and read out in open court, despite the applicant's objection. In those statements Mr I. gave a detailed description of the events on 27 February and 9 March 2007 pertaining to his participation in the police-controlled purchases of drugs from the applicant. As follows from the Town Court's judgment, Mr I.'s personal data were not disclosed to the applicant. Mr I.'s absence from trial hearings had been considered “exceptional”. Having cited no reasons which could justify Mr I.'s absence from the court hearing, the Town Court held that the absence was prompted by “exceptional circumstances”. On a number of occasions the defence unsuccessfully asked the Town Court to disclose Mr I.'s identity. - statements made in open court by Ms M. and Ms D., lay witnesses who had assisted the police officers during the search of the applicant's flat on 27 April 2007. Both Ms M. and Ms D. confirmed that the applicant had voluntarily turned over to the police officers a small package of a substance containing marijuana. - statements made in a trial hearing by Mr Se., who had acted as a lay witness during the police-controlled purchase of drugs from the applicant on 9 March 2007. Mr Se. explained that on a request from a police officer he had followed Mr I. to the door of the applicant's flat. Mr I. had spent several minutes in the flat. After Mr I. left the flat he had a small package, which he gave to the police officers. - statements given by another lay witness, Mr B., during the pre-trial investigation and read out in open court with the parties' consent. Mr B.'s statements were similar to those given by Mr Se. - statements by Mr K., a lay witness who had participated in the police-controlled purchase of drugs from the applicant on 27 February 2007. Those statements were given by Mr K. during an interview with an investigator and read out in a trial hearing. The Town Court, without providing any further details, held that reasons for Mr K.'s absence from the trial were “exceptional”. In his statements Mr K. provided a detailed description of events on 27 February 2007 and corroborated the prosecution's version. - statements by police officer Za., made in open court. The police officer set out an account of events on 27 February, 9 March and 27 April 2007, insisting that on the first two dates Mr I. had purchased drugs from the applicant during the police-controlled operations and that on the later date drugs had been found in the applicant's flat during the search. - report on a body search of Mr I. on 27 February 2007 showing that Mr I. had had no illegal substances or money on him before he took part in the police-controlled purchase of drugs from the applicant. - report drawn up by police officer Za. on 27 February 2007 showing that the latter had given Mr I. four 100-rouble bills to purchase drugs from the applicant; - report of 27 February 2007 indicating that on his return from the applicant's flat Mr I. had handed the police officers a package containing a phytogenous substance. - an expert report confirming that the substances which Mr I. had handed to the police officers during the police-controlled operations on 27 February and 9 March 2007 contained cannabis. - an expert report, according to which cannabis handed over by Mr I. to the police on 27 February and 9 March 2007 most probably had the same origin. However, the cannabis which the applicant voluntarily turned over to the police during the search of his flat was from a different batch. 14. On request by the defence the Town Court heard a number of witnesses and rejected their testimony as unreliable. Two defence witnesses testified that they had visited the applicant on 9 March 2007 and had been in his flat at the time when the police had allegedly performed the controlled drug purchase. They insisted that no one had visited the applicant's flat when they had been there and that the applicant had not sold drugs to anyone. Another witness testified that she had been in the applicant's flat with her brother on 27 February 2007 at the time of the alleged drug purchase. She stressed that there had been no other visitors. The Town Court interviewed Mr So., the head of the military unit where lay witnesses Mr K. and Mr P. had been performing military service. Mr So. stated that, on a written request from the applicant's lawyer, he had had a conversation with Mr K., who had insisted that he had not seen Mr I. entering the applicant's flat. The Town Court also studied a statement written by Mr K. at the end of that conversation. Mr K. confirmed that after Mr I. had approached the door of the applicant's flat he had ordered Mr K. to go down to the ground floor and thus Mr K. had been unable to observe Mr I. entering the flat. The Town Court refused to call Mr A., whom the applicant had asked to be questioned about Mr I.'s identity. 15. The applicant's lawyer appealed against the conviction, arguing, inter alia, that the Town Court had read out statements by Mr I. and Mr K., disregarding the objection by the defence to that effect, and that it had refused to hear Mr A. 16. On 3 March 2008 the Primorye Regional Court upheld the judgment of 14 December 2007, endorsing the reasons given by the Town Court. As regards the applicant's argument concerning the statements by Mr I. and Mr K., the Regional Court held as follows: “The [Town] court read out the statements by Mr I. and Mr K. in open court, complying with the requirements of Article 281 of the Russian Code of Criminal Procedure, because the [Town] court found that the reasons for their absence from the hearings were exceptional and [it] issued a reasoned judgment to that effect.” The Regional Court also concluded that the Town Court had rightfully dismissed the applicant's and his lawyer's requests for the disclosure of Mr I.'s identity. 17. On 15 January 2010 the Presidium of the Primorye Regional Court, by way of a supervisory review, quashed the judgments of 14 December 2007 and 3 March 2008 in the part concerning the applicant's conviction for drug trafficking, and upheld the conviction for possession of drugs found in his flat during the search. It stressed that having based, to a substantial degree, the applicant's conviction for drug trafficking on statements by witnesses whom the applicant had been unable to confront in open court, including the anonymous witness I. and a lay witness K., the domestic courts had violated Article 6 § 3 (d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Presidium concluded that there was no evidence that the applicant was guilty of drug trafficking. Having acquitted the applicant of that charge, the Presidium reduced his sentence to two years' imprisonment and authorised his immediate release, as he had already served the entire sentence. The Presidium also confirmed the applicant's right to rehabilitation. 18. The following account has been drawn up from the medical records submitted by the Government. 19. In 2003 the applicant was diagnosed with pulmonary tuberculosis. He underwent treatment in a tuberculosis hospital in Artyom. 20. On 28 April 2007, on his admission to temporary detention facility no. IZ-25/1, the applicant informed an attending prison doctor that he had tuberculosis and complained of a cough and general fatigue. The doctor noted in the admission record that an examination by a tuberculosis specialist was required. 21. Three days later the applicant underwent an X-ray examination which revealed the presence of a tuberculoma, measuring two centimetres in width and three centimetres in length, in the upper lobe of the left lung and dense foci in the right lung. On the basis of the X-ray examination the tuberculosis specialist recorded the following diagnosis in the applicant's medical history: “large residual changes in the form of a tuberculoma on the left and dense foci on the right after the recent tuberculosis; “D” control is not required; R-control should be carried out twice a year”. The next X-ray exam was prescribed for a month later. 22. On 29 June 2007 the applicant received the second chest X-ray examination, which showed no relapse. 23. On 13 July 2007 the applicant requested to see a prison doctor to whom he complained of fatigue, a high temperature in the evenings and excessive sweating. The doctor diagnosed the applicant with acute viral respiratory infection, authorised a number of analyses, including general blood and urine tests, sputum analysis and a survey X-ray exam, and prescribed treatment with floracyd, a cough medicine and multivitamins. 24. A survey X-ray examination performed on 16 July 2007 revealed the reactivation of the tuberculosis and the need for in-patient treatment for the applicant. The doctor's diagnosis was “infiltrative tuberculosis on the right side”. 25. On 17 July 2007 the applicant was transferred to the pulmonary tuberculosis ward of the medical department in the detention facility, where he remained until 3 April 2008. On 19, 20 and 23 July 2007 bacteriological sputum tests were performed by way of bacterioscopy, and showed no mycobacterium tuberculosis (“MBT”). Subsequently similar tests were performed once a month, each time producing negative results. On 23 July 2007 a sputum sample taken for culture turned out positive. At the same time results of the applicant's drug susceptibility testing (“DST”) were made available to the facility medical personnel, guiding the choice of the applicant's treatment regimen. Between 17 July 2007 and 25 March 2008 the applicant was subjected to an intensive chemotherapy regimen, comprising a number of drugs: isoniazid, pyrazinamide, rifampicin, ethambutol, streptomycin, phosphoglif and multivitamins. During the initial stage of the treatment the applicant adhered to a strict medication regime, having received ninety doses of anti-bacteriological medicines. An intake of every dose was observed by the facility medical staff. Attending tuberculosis specialists examined the patient once in three or four days in view of identifying whether a correction of the drug regimen was necessary. Monthly clinical blood and urine analyses were also carried out. Every two months the applicant received chest radiography. Liver examinations were conducted regularly. 26. After a sputum culture testing had showed that the applicant was no longer smear positive and similar results had been received by way of sputum smear bacterioscopy at completion of the intensive phase of the treatment, the continuation phase of the therapy commenced, comprising treatment with isoniazid, rifampicin and ethambutol (“HRE regimen”). 27. The applicant's medical history contained a number of entries made by attending tuberculosis specialists, recording the applicant's negative attitude towards the treatment and his refusal to take anti-bacteriological medicines on at least five occasions. The attending doctors had conversations with the applicant, persuading him to continue the treatment and warning about a possible relapse of the illness or development of severe multi-drug-resistant tuberculosis. In addition, during examinations doctors occasionally reminded him of the negative effects of treatment interruption. 28. Following the applicant's final conviction on 3 March 2008, on 3 April 2008 the applicant was discharged from the medical department of the detention facility with a final diagnosis of infiltrative tuberculosis of the right lung in the resolution and consolidation phase and recommendations to continue treatment on an HRE regimen with a daily special dietary food ration. He was sent for subsequent treatment to Specialised Medical Establishment no. 47 (“the tuberculosis hospital”) for prisoners suffering from tuberculosis, located in the Primorye Region. 29. On 7 April 2008, on admission to the tuberculosis hospital, the applicant was examined by a tuberculosis specialist. A clinical blood analysis and sputum smear bacterioscopy were performed. It was decided to continue the extension phase of the medicine regimen as prescribed by medical specialists of the detention facility. A chest X-ray examination and sputum culture testing were scheduled to be performed at the end of the extension phase. The applicant was also assigned a special diet. 30. Once a month the applicant received a full medical examination. Each time the attending tuberculosis specialists recorded the total number of doses of anti-bacteriological medicines taken by the applicant. Clinical blood and urine tests were performed every three months. A sputum smear was regularly taken for bacterioscopy testing, revealing no presence of MBT. The applicant's medical record also showed that medical personnel discussed with the applicant the necessity of the treatment and adherence to a strict medical regimen. 31. On 25 February 2009 the applicant was examined by a medical panel comprising a number of medical specialists. Having studied his medical records, including results of three most recent X-ray examinations, blood and urine analysis and sputum smear tests, the panel issued the following diagnosis: “clinical recovery from infiltrative pulmonary tuberculosis accompanied by the presence of extensive post-tuberculosis changes in the form of foci and fibrous foci... in both lungs”. A schedule showing future medical procedures and their frequency was developed. The applicant was also prescribed seasonal retreatment courses with isoniazid, ethambutol and vitamins, to prevent relapse of the illness. 32. On 7 April 2009 the applicant was transferred to correctional colony no. 20. On arrival he was examined by a colony physician, who diagnosed the applicant with acute maxillary sinusitis for which he received treatment between 7 and 20 April 2009. As follows from the applicant's medical history, the correctional colony medical staff complied fully with the recommendations issued by the specialists of the tuberculosis hospital in respect of medical tests and anti-relapse treatment for the applicant. “1. Provision of anti-tuberculosis aid to individuals suffering from tuberculosis is guaranteed by the State and is performed on the basis of principles of legality, compliance with the rights of an individual and citizen, [and] general accessibility in the amount determined by the Programme of State guarantees for provision of medical assistance to citizens of the Russian Federation, free of charge. 2. Anti-tuberculosis aid is provided to citizens when they voluntarily apply [for such aid] or when they consent [to such aid], safe for cases indicated in Sections 9 and 10 of the present Federal law and other federal laws...” “1. Individuals suffering from tuberculosis who are in need of anti-tuberculosis aid receive such an aid in medical anti-tuberculosis facilities, licensed to provide [that aid]. 2. Individuals who are or have been in contact with an individual suffering from tuberculosis should undergo an examination for detection of tuberculosis in compliance with requirements of law of the Russian Federation...” 1. Regular medical examinations of persons suffering from tuberculosis is performed in compliance with the procedure laid down by a respective federal executive body... 2. Regular medical examinations of persons suffering from tuberculosis is performed irrespective of the patients' or their representatives' consent. 3. A medical commission appointed by the head of a medical anti-tuberculosis facility... takes a decision authorising regular medical examinations or terminating them and records such a decision in medical documents...; an individual in respect of whom such a decision has been issued, is informed in writing about the decision taken.” “2. Individuals suffering from contagious forms of tuberculosis who... intentionally avoid medical examinations aimed at detection of tuberculosis or avoid treating it, should be admitted, by a court decision, to specialised medical anti-tuberculosis establishments for mandatory examinations and treatment.” “2. Individuals admitted to medical anti-tuberculosis facilities for examinations and (or) treatment, have a right to: receive information from the administration of the medical anti-tuberculosis facilities on the progress of treatment, examinations... have meetings with lawyers and clergy in private; take part in religious ceremonies, if they do not have a damaging impact on the state of their health; continue their education... 3. Individuals... suffering from tuberculosis have other rights provided for by the laws of the Russian Federation on health care...” “Individuals... suffering from tuberculosis must; submit to medical procedures authorised by medical personnel; comply with the internal regulations of medical anti-tuberculosis facilities when they stay at those facilities; comply with sanitary and hygiene conditions established for public places when persons suffering from tuberculosis [visit them].” “4. Individuals... suffering from tuberculosis should be provided with medication free of charge for out-patient treatment of tuberculosis by federal specialised medical facilities in compliance with the procedure established by the Government of the Russian Federation...” 33. Russian law gives detailed guidelines for provision of medical assistance to detained individuals. These guidelines, found in the joint Decree of the Ministry of Health and Social Development and the Ministry of Justice no. 640/190 on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable without exception to all detainees. 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 temporary detention facility all detainees should 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 and those in need of urgent medical assistance. Particular attention should 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 X-ray. During the in-depth examination a prison 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 prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 34. Subsequent medical examinations of detainees are performed at least twice a year or on detainees' complaints. 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 comprehensively informed about the results of the medical examinations. 35. Section III of the Regulation also sets the procedure for cases of refusals by detainees to undergo a medical examination or treatment. In each case of refusal, a respective entry should be made in the detainees' medical record. A prison doctor should comprehensively explain the detainee consequences of his refusal to undergo the medical procedure. 36. 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. 37. Section X of the Regulation regulates medical examinations, monitoring and treatment of detainees suffering from tuberculosis. It lays down a detailed account of medical procedures to be employed, establishes their frequency, regulates courses of treatment for new tuberculosis patients and previously treated ones (relapsing or defaulting detainees). In particular, it provides that when a detainee exhibits signs of a relapse of tuberculosis, he or she should immediately be removed to designated premises (infectious unit of the medical department of the facility) and should be sent for treatment to an anti-tuberculosis establishment. The prophylactic and anti-relapse treatment of tuberculosis patients should be performed by a tuberculosis specialist. Rigorous checking of the intake of anti-tuberculosis drugs by the detainee should be put in place. Each dose should be recorded in the detainee's medical history. A refusal to take anti-tuberculosis medicine should also be noted in the medical record. A discussion of the negative impacts of the refusal should follow. Detainees suffering from tuberculosis should also be transferred to a special dietary ration. 38. On 21 March 2003 the Ministry of Health adopted Decree no. 109 on Improvement of Anti-Tuberculosis Measures in the Russian Federation (“the Anti-Tuberculosis Decree” or “Decree”). Having acknowledged a difficult epidemic situation in the Russian Federation in connection with a drastic increase in the number of individuals suffering from tuberculosis, particularly among children and detainees, and a substantial rise in the number of tuberculosis-related deaths, the Decree laid down guidelines and recommendations for country-wide prevention, detection and therapy of tuberculosis which conform to international standards, identifying forms and types of tuberculosis and categories of patients suffering from them, establishing types of necessary medical examinations, analyses and testing to be performed in each case and giving extremely detailed instructions on their performance and assessment; laid down rules on vaccination; determined courses and regimens of therapy for particular categories of patients, and so on. 39. In particular, Addendum 6 to the Decree contains an Instruction on chemotherapy for tuberculosis patients. The aims of treatment, essential anti-tuberculosis drugs and their dose combinations, as well as standard regimens of chemotherapy set laid down by the Instruction for Russian tuberculosis patients conformed to those recommended by the World Health Organisation in Treatment of Tuberculosis: Guidelines for National Programs (see below). 40. Article 281 of the new CCrP, in so far as relevant, reads as follows: “1. Testimony previously given by a victim or witness during the preliminary investigation or at the trial may be read out... if the victim or witness fails to attend, subject to the parties' consent, save in cases listed in the second part of the present Article. 2. If a victim or witness fails to appear in court, the court may, at a party's request or on its own initiative, read out statements previously given by them in the following cases: 1) victim's or witness's death; 2) grave illness precluding attendance at a court hearing; 3) refusal by a victim or witness who is a national of a foreign State to attend a hearing when summoned by the court; 4) natural disaster or any other emergency case precluding attendance at a court hearing.” 41. The relevant provisions of the new CCrP read as follows: “1. A court in its judgment.... acknowledges the right to rehabilitation for an individual who has been acquitted... At the same time the rehabilitated [person] should have explained to them the procedure for compensation for damage pertaining to criminal prosecution....” “1. Compensation for pecuniary damage to a rehabilitated [person] includes: salary, pension, allowances and other sources of income which he lost as a result of the criminal prosecution; his property confiscated or seized by the State on the basis of the judgment by which he had been convicted...; fines and legal costs and expenses which he paid in compliance with the court's judgment; sums paid by him for provision of legal services...; other expenses. 2. At any moment during the limitation period established by the Russian Civil Code and after the rehabilitated [person] received a copy of the judgment [by which he had been acquitted]... he has the right to apply to [the court which had issued the judgment] with a demand to compensate him damage... ... 4. No later than a month after the demand for compensation was received, the court... must determine its amount and issue a decision authorising the payment in compensation for that damage. That payment should take into account the inflation rate. ...” “1. A prosecutor should give an official apology in the name of the State to the rehabilitated [person] for damage caused to him. 2. An action for compensation for non-pecuniary damage should be brought within civil judicial proceedings....” “1. Restoration of labour, pension, housing and other rights of a rehabilitated [person] should be performed in compliance with [the CCrP] established for execution of court judgments....” 42. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows: “Health care 39. Prison authorities shall safeguard the health of all prisoners in their care. Organisation of prison health care 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. 40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy. 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. Medical and health care personnel 41.1 Every prison shall have the services of at least one qualified general medical practitioner. 41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency. ... 41.4 Every prison shall have personnel suitably trained in health care. Duties of the medical practitioner 42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary. ... 42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: ... b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; ... f. isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment; ... 43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ... Health care provision 46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison. 46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.” 43. The complexity and importance of health care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The following are the extracts from the Report: “33. When entering prison, all prisoners should without delay be seen by a member of the establishment's health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources. It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene. 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay... 35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds)... Further, prison doctors should be able to call upon the services of specialists. As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification. Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital... 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). ... 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service. ... 54. A prison health care service should ensure that information about transmittable diseases (in particular hepatitis, AIDS, tuberculosis, dermatological infections) is regularly circulated, both to prisoners and to prison staff. Where appropriate, medical control of those with whom a particular prisoner has regular contact (fellow prisoners, prison staff, frequent visitors) should be carried out.” 44. A further elaboration of European expectations towards health care in prisons is found in the appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States on the ethical and organisational aspects of health care in prison (adopted on 8 April 1998 at the 627th meeting of the Ministers' Deputies). Primarily restating the European Prison Rules and CPT standards, the Recommendation went beyond reiteration of the principles in some aspects to include more specific discussion of the management of certain common problems including transmissible diseases. In particular, in respect of cases of tuberculosis, the Committee of Ministers stressed that all necessary measures should be applied to prevent the propagation of this infection, in accordance with relevant legislation in this area. Therapeutic intervention should be of a standard equal to that outside of prison. The medical services of the local chest physician should be requested in order to obtain the long-term advice that is required for this condition as is undertaken in the community in accordance with relevant legislation (Section 41). 45. The fact that transmissible diseases in European prisons have become an issue of considerable concern prompted a recommendation of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases and related health problems in prison (adopted on 18 October 1993 at the 500th meeting of the Ministers' Deputies). The relevant extracts from the Recommendation read as follows: “2. The systematic medical examination carried out on entry into prison should include measures to detect intercurrent diseases, including treatable infectious diseases, in particular tuberculosis. The examination also gives the opportunity to provide health education and to give prisoners a greater sense of responsibility for their own health.... 15. Adequate financial and human resources should be made available within the prison health system to meet not only the problems of transmissible diseases and HIV/Aids but also all health problems affecting prisoners.” 46. An expanded coverage of the issue related to transmissible diseases in detention facilities was given by the European Committee for the Prevention of Torture in its 11th General Report (CPT/INF (2001) 16 published on 3 September 2001), a discussion prompted by findings of serious inadequacies in health provision and poor material conditions of detention which were exacerbating the transmission of the diseases. Addressing the issue, the CPT held as follows: “31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries. Although affecting the population at large, these diseases have emerged as a dramatic problem in certain prison systems. In this connection the CPT has, on a number of occasions, been obliged to express serious concerns about the inadequacy of the measures taken to tackle this problem. Further, material conditions under which prisoners are held have often been found to be such that they can only favour the spread of these diseases. The CPT is aware that in periods of economic difficulties - such as those encountered today in many countries visited by the CPT - sacrifices have to be made, including in penitentiary establishments. However, regardless of the difficulties faced at any given time, the act of depriving a person of his liberty always entails a duty of care which calls for effective methods of prevention, screening, and treatment. Compliance with this duty by public authorities is all the more important when it is a question of care required to treat life-threatening diseases. The use of up-to date methods for screening, the regular supply of medication and related materials, the availability of staff ensuring that prisoners take the prescribed medicines in the right doses and at the right intervals, and the provision when appropriate of special diets, constitute essential elements of an effective strategy to combat the above-mentioned diseases and to provide appropriate care to the prisoners concerned. Similarly, material conditions in accommodation for prisoners with transmissible diseases must be conducive to the improvement of their health; in addition to natural light and good ventilation, there must be satisfactory hygiene as well as an absence of overcrowding. Further, the prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds... In order to dispel misconceptions on these matters, it is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. It must also be stressed that appropriate information and counselling should be provided before and - in the case of a positive result - after any screening test. Further, it is axiomatic that patient-related information should be protected by medical confidentiality. As a matter of principle, any interventions in this area should be based on the informed consent of the persons concerned. Moreover, for control of the above-mentioned diseases to be effective, all the ministries and agencies working in this field in a given country must ensure that they co-ordinate their efforts in the best possible way. In this respect the CPT wishes to stress that the continuation of treatment after release from prison must be guaranteed.” 47. The CPT report on the visit to the Russian Federation carried out from 2 to 17 December 2001 (CPT/INF (2003) 30) provides as follows: “102. The CPT is also seriously concerned by the practice of transferring back from SIZO [temporary detention facility] to IVS [temporary detention ward in police departments] facilities prisoners diagnosed to have BK+ tuberculosis (and hence highly contagious), as well as by the interruption of TB treatment while at the IVS. An interruption of the treatment also appeared to occur during transfers between penitentiary establishments. In the interest of combating the spread of tuberculosis within the law-enforcement and penitentiary system and in society in general, the CPT recommends that immediate measures be taken to put an end to the above-mentioned practice.” 48. On 23 December 2009 the World Bank published the Implementation Completion and Results Report (Report no. ICR00001281, Volume I) on a loan granted to the Russian Federation for Tuberculosis and Aids Control Project. The relevant part of the Report read as follows: “According to the World Health Organization (WHO), Russia was one of the 22 high-burden countries for TB in the world (WHO, Global Tuberculosis control: Surveillance, Planning, Financing, Geneva, 2002). The incidence of TB increased throughout the 1990s. This was due to a combination of factors, including: (i) increased poverty, (ii) under-funding of TB services and health services in general, (iii) diagnostic and therapeutic approaches that were designed for a centralized command-and-control TB system, but were unable to cope with the social mobility and relative freedom of the post-Soviet era, and (iv) technical inadequacies and outdated equipment. Migration of populations from ex-Soviet republics with high TB burdens also increased the problem. Prevalence rates were many times higher in the prison system than in the general population. Treatment included lengthy hospitalizations, variations among clinicians and patients in the therapeutic regimen, and frequent recourse to surgery. A shrinking health budget resulted in an erratic supply of anti-TB drugs and laboratory supplies, reduced quality control in TB dispensaries and laboratories, and inadequate treatment. The social conditions favouring the spread of TB, combined with inadequate systems for diagnosis, treatment, and surveillance, as well as increased drug resistance, produced a serious public health problem. TB control in the former Union of Soviet Socialist Republics (USSR) and in most of Russia in the 1990s was heavily centralized, with separate hospitals (TB dispensaries), TB sanatoriums, TB research institutes and TB specialists. The system was designed in the 1920s to address the challenges of the TB epidemic. Case detection relied strongly on active mass screening by X-ray (phluorography). Specificity, sensitivity, and cost-effectiveness considerations were not features of this approach. Bacille Calmette-Guerin (BCG) immunization was a key feature of the TB... By 2000, there was more than a two-fold increase in TB incidence, and mortality from TB increased 3 times, compared with 1990. The lowered treatment effectiveness of the recent years resulted into an increase in the number of TB chronic patients, creating a permanent 'breeding ground' for the infection. At that moment, the share of pulmonary TB cases confirmed by bacterioscopy did not exceed 25%, and the share of such cases confirmed by culture testing was no more than 41% due to suboptimal effectiveness of laboratory diagnosis, which led to poor detection of smear-positive TB cases. Being a social disease, TB affected the most socially and economically marginalized populations in Russia.” 49. The following are the extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 1997, pp. 27, 33 and 41: “Previously treated patients may have acquired drug resistance. They are more likely than new patients to harbour and excrete bacilli resistant to at least isoniazid. The re-treatment regimen consists of initially 5 drugs, with 3 drugs in the continuation phase. The patient receives at least 2 drugs in the initial phase which are still effective. This reduces the risk of selecting further resistant bacilli.... Patients with sputum smear-positive pulmonary TB should be monitored by sputum smear examination. This is the only group of TB patients for whom bacteriological monitoring is possible. It is unnecessary and wasteful of resources to monitor the patient by chest radiography. For patients with sputum smear-negative pulmonary TB and extra-pulmonary TB, clinical monitoring is the usual way of assessing response to treatment. Under programme conditions in high TB incidence countries, routine monitoring by sputum culture is not feasible or recommended. Where facilities are available, culture surveys can be useful as part of quality control of diagnosis by smear microscopy... Directly observed treatment is one element of the DOTS strategy, i.e. the WHO recommended policy package for TB control. Direct observation of treatment means that a supervisor watches the patient swallowing the tablets. This ensures that a TB patient takes the right drugs, in the right doses, at the right intervals... Many patients receiving self-administered treatment will not adhere to treatment. It is impossible to predict who will or will not comply, therefore directly observed treatment is necessary at least in the initial phase to ensure adherence. If a TB patient misses one attendance to receive treatment, it is necessary to find that patient and continue treatment.” 50. In the fourth edition of the Guidelines, published in 2009, the WHO recommended as follows: “DST [a drug susceptibility testing] before or at the start of therapy is strongly recommended for all previously treated persons.” (p. 11)