CASE OF BARSUKOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment)
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
6. The applicant was born in 1956 in the Tambov Region. Before his arrest he lived in St Petersburg. 7. The applicant was arrested on 23 August 2007. He remained in detention throughout the investigation and trial. 8. On 9 November 2009 the Kuybyshevskiy District Court of St Petersburg found him guilty of aggravated fraud and money laundering committed within an organised criminal group and sentenced him to fourteen years’ imprisonment. That judgment was upheld on appeal by the St Petersburg City Court on 30 March 2010. 9. On 6 March 2012, in another set of criminal proceedings, the Kuybyshevskiy District Court, found the applicant guilty of two counts of aggravated extortion committed within an organised criminal group and imposed a cumulative prison sentence of fifteen years. The judgment became final on 12 July 2012 when endorsed by the City Court. 10. In 1994 the applicant lost his right arm. He suffered heart attacks in 2000 and 2007 and a kidney affected by cancer was removed in 2003. At the time of his arrest the applicant’s diagnoses listed: ischemic disease, exertional angina of the second functional group, atherosclerotic and post infarction cardiosclerosis, third-stage hypertension with a high risk of vascular complications; cardiac failure of the second functional group; chronic post-traumatic pericarditis with effusion; remote cancer metastases requiring permanent supervision; kidney stones; concretion of the right kidney; chronic pyelonephritis; chronic kidney failure of the first degree; adenocarcinoma of the prostate gland; chronic prostatitis; chronic cystitis, and constantly recurrent multidrug-resistant infection of the urinary tract. To keep his medical condition under control, the applicant followed a daily complex drug regimen comprising up to ten medicaments and underwent an in-depth medical examination every two months in a hospital where he received necessary treatment in respect of his oncological illnesses. 11. On 24 August 2007 upon his admission to remand prison no. IZ77/1 in Moscow the applicant informed the prison medical authorities of his condition, submitting the full list of his diagnoses. 12. In September 2007 he started complaining about a number of symptoms such as a heart pain, fatigue, difficulty in breathing, and frequent urination. He received basic treatment which alleviated a part of his health problems, but the urinary condition worsened. In November 2007 he complained of a pain in the low abdomen and inability to urinate. On 20 November 2007 a surgeon recommended urinary catheterisation, that is to say the insertion of a tube into the patient’s bladder via the urethra. That procedure was performed approximately 250 times during the first year of detention. In the meantime the urinary condition became more acute. 13. On 4 December 2008 the applicant was examined by a urologist for the first time whilst in detention. The doctor recommended treatment with antibiotics, regular urological supervision and to avoid catheterisation in so far as possible. 14. Throughout 2009 the applicant’s urinary condition persisted. He urinated up to thirty-seven times per day and his nocturnal sleep was interrupted every hour or two. He had to continue resorting to urinary cauterisation. On several occasions he had a consultation with a urologist. 15. On 12 October 2009, at the request of the applicant’s lawyer, three medical experts prepared a report assessing the capability of the custodial authorities to properly treat the applicant. Having examined the medical file on the applicant compiled in the civilian hospital, submissions by the custodial authorities and the applicant’s own comments, the experts concluded that he required systematic treatment with amendments to the chemotherapy regimen and periodic admissions to a specialised cardiology hospital for instrumental examinations and necessary amendments to drug regimen. Given the absence of proper medical supervision, the experts also warned of a possible deterioration of the applicant’s urinary and oncological problems and a risk of those illnesses advancing to a stage requiring surgery, or to a stage with no prospects of the applicant being cured or even his life being saved. The experts observed that the medical unit of the detention facility where the applicant was kept was not equipped for treating patients in such a medical condition. 16. On 28 December 2009, 19 March, 15 June, 26 July, 25 August and 30 November 2010 the applicant was examined in the Moscow Scientific Institute of Urology (hereinafter “the Urology Institute”), having been diagnosed with neurogenic bladder dysfunction. The treatment provided slightly improved his condition. 17. On 21 December 2010 the doctors from the Urology Institute performed a surgery on the applicant. A suprapubic catheter was inserted into his bladder through a cut in the abdomen. The applicant was discharged from the hospital to a remand prison under the supervision of the resident doctor. 18. Three days later the applicant complained of continuous bleeding from the abdominal incision. The next day, having lost more than one litre of blood, he was sent back to the Institute, where his condition was brought under control. 19. In April 2011, in the remand prison, the applicant developed an acute inflammation of the urethra, which was successfully treated in the Institute. 20. From 2012 to 2014 the applicant’s urinary condition remained stable. He continued using the suprapubic catheter to remove the urine. 21. In the meantime, in December 2009 the applicant brought a court claim against the detention authorities, seeking that the lack of appropriate medical treatment be declared unlawful. 22. On 28 June 2010 the Preobrazhenskiy District Court of Moscow dismissed his claim. The court found as follows: “From the [applicant’s] medical file submitted by the [remand prison] it is apparent that ... [the authorities] provided him with medical aid, subjected him to medical testing, and prescribed treatment. In particular, on 4 December 2008, 25 September and 15 November 2009 he was seen by a urologist... On 28 December 2009 he was examined in the [Urology Institute]. It is not apparent from the medical file that the authorities refused to provide [the applicant] with the medical assistance or that he was deprived of the requisite medication”. 23. On 24 March 2011 the Moscow City Court upheld that decision on appeal.