CASE OF SERGEYEVA AND PROLETARSKAYA v. RUSSIA
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect)
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
6. The first applicant is a sister of Mr B., who died of AIDS in the Botkin Hospital in St Petersburg on 6 May 2008. 7. The second applicant is the mother of Mr P., who died of the same disease in the same hospital on 19 June 2009. 8. The applicants live in Moscow. 9. On 13 October 2004 Mr B. was arrested on suspicion of robbery. The next day the Frunzenskiy District Court of St Petersburg authorised his detention pending investigation. He was then taken to remand prison no. IZ47/6 in the Leningrad Region. Twelve days later he was diagnosed with HIV. 10. In November 2004 Mr B. was transferred to remand prison no. IZ47/1 in St Petersburg. On admission he informed the prison doctor about his HIV status. A relevant entry was made in his medical file, but no treatment was prescribed. 11. On 1 December 2005 the Frunzenskiy District Court of St Petersburg convicted Mr B. and sentenced him to seven years’ imprisonment. In August 2006 he was sent to serve the sentence in correctional colony no. IK-5 in the Leningrad Region. 12. Having complained of abdominal pain, on 4 March 2007 Mr B. was admitted to the prison hospital, where he was later diagnosed with tuberculosis of the peripheral lymph nodes. It was decided that he should stay in the hospital for tuberculosis treatment. 13. On 16 March 2007 Mr B. was seen by an infectious diseases doctor, who ordered a CD4 count to be conducted. The test, performed five days later, showed that the level of CD4 cells was 163 cells/mm3, which corresponded to an advanced stage of the disease. 14. On 31 May and 16 June 2007 the infectious diseases doctor visited Mr B. According to the medical records, the latter asked for antiretroviral therapy. In response, the doctor “gave him a talk”. No HIV treatment was prescribed. 15. On 20 June 2007 Mr B. was discharged from the prison hospital. Until April 2008 he was transferred from one prison medical facility to another for anti-tuberculosis treatment. Although the treatment was successful, the patient’s overall medical condition continued to deteriorate. Medical specialists interpreted that as a sign of progressing HIV. 16. On 2 April 2008 Mr B. was admitted to prison hospital no. RB-2 in the Republic of Karelia. At that time he was unable to walk, was feverish and extremely emaciated. Eight days later he was transferred to an infectious diseases unit. His doctor alleged that his grave medical condition resulted from a lack of highly active antiretroviral therapy (HAART). Mr B. was prescribed antibacterial and disintoxication therapy. 17. On 22 April 2008 the medical authorities applied for Mr B.’s early release on medical grounds. Three days later the Medvezhyegorsk Town Court of the Republic of Karelia granted the request. On the same day Mr B. was released from detention. 18. On 26 April 2008 Mr B. was admitted to Botkin Hospital in St Petersburg. He did not regain consciousness and died there on 6 May 2008. 19. On 26 July 2006 Mr P. was convicted of theft and sentenced to a term of imprisonment. He was taken into police custody and two days later sent to remand prison no. IZ-47/6 in the Leningrad Region. 20. During the admission procedure he told the resident doctor that in 2000 he had been diagnosed with HIV, which by 2006 had progressed to AIDS. Before his arrest he had been receiving antiretroviral therapy. He was also suffering from hepatitis B, C, and D and a skin disease. 21. Having undergone a routine medical examination, on 31 July 2006 Mr P. was diagnosed with infiltrative tuberculosis of the right lung. A standard drug regimen was prescribed and administered to him in the prison medical unit. A chest X-ray examination carried out on 20 November 2006 showed a decrease in the area of the lung affected by the tuberculosis. 22. Mr P. was convicted of robbery in another set of criminal proceedings and on 12 December 2006 he was sentenced to three years’ imprisonment. He was sent to prison medical facility no. 4 in the Republic of Karelia. 23. Mr P.’s medical condition worsened. The result of a sputum culture test performed on 26 February 2007 was smear-positive. By April 2007 Mr P.’s tuberculosis had developed resistance to six of the drugs he had been taking. Following a decision of the prison medical board on 16 June 2007, his drug regimen was adjusted. 24. On 26 June 2007 Mr P. was admitted to prison hospital no. RB-2 in the Republic of Karelia, where the tuberculosis treatment continued as prescribed. It appears that the change in medication improved the patient’s lung condition. However, doctors noted a further development of opportunistic infections. A viral load test was performed, the results of which, as alleged by the second applicant, were not given to Mr P. 25. On 13 July 2007 Mr P. returned to the prison medical facility. Chest X-ray examinations carried out on 24 July and 26 September 2007 showed that the condition of Mr P.’s lungs had improved. The results of a smear test proved negative. On 16 October 2008 Mr P. was sent back to a regular prison ward. His treatment continued. 26. On 27 October 2008 at the request of Mr P., the Segezha Town Court of the Republic of Karelia ordered his release on parole. Having been released on 31 October 2008, Mr P. was taken to Botkin Hospital. He died in the hospital on 19 June 2009 from “an illness caused by the HIV infection”. 27. On 26 May and 4 June 2010 a Russian non-governmental organisation, Agora, complained to the Russian Prosecutor General’s Office of the lack of HIV treatment for detainees, including Mr B. and Mr P. The complaint was referred to the prosecutor’s office in the Republic of Karelia. 28. In a letter to the Russian Prosecutor General’s Office dated 6 July 2010 the prosecutor’s office in the Republic of Karelia observed that in 2007 and 2008 prison authorities in Karelia had experienced difficulties with providing medical assistance to HIV-infected convicts in view of the fact that a large number of infected inmates had been sent to the Republic from other regions. The prosecutor’s office said that the supply of drugs had been limited and the number of medical professionals had been insufficient, and acknowledged that the medical care of Mr B. and Mr P. had fallen short of the domestic standards. In particular, they had not received HAART. The prosecutor’s office had sent the evidence it had gathered to the investigative committee in the Republic of Karelia to determine whether a criminal case should be opened. 29. On 5 August 2010 the investigative authorities refused to open a criminal case into the deaths of Mr B. and Mr P. Citing the difficulties encountered by the prison authorities of the Karelia Republic in 2006-08, including the large number of HIV-positive inmates, a lack of specialists trained to treat inmates suffering from that infection, the absence of an immunological laboratory and the lack of medication, the investigators concluded that the prison authorities had taken all possible measures to provide medical assistance to HIV-infected inmates. No causal link between the absence of HIV therapy and the deaths of Mr B. and Mr P. was established. The investigative authorities stressed that Mr B. had managed to live in detention without the antiretroviral therapy for almost three years and that Mr P. had died more than seven months after his release. The conduct of the prison and medical authorities, in the investigators’ opinion, did not reveal any signs of a criminal offence. 30. The above decision was not challenged. 31. In 2011 the applicants lodged a claim for non-pecuniary damages against the Russian Ministry of Finance, arguing that their relatives’ death from HIV had been caused by the authorities’ failure to provide appropriate medical care. 32. On 28 October 2011 the Tverskoy District Court of Moscow examined the claim. It found that the burden of proof was on the applicants, who had to prove the unlawfulness of the prison officials’ conduct, the alleged damage, and the causal links between the officials’ conduct and that damage. Having noted the absence of a decision establishing a breach of the law by the prison authorities, and having referred to the decision not to open a criminal case into the deaths of the applicant’s relatives, the court dismissed the claim as unsubstantiated. 33. On 22 February 2012 the Moscow City Court upheld the judgment on appeal, fully endorsing the District Court’s reasoning.