CASE OF ANDREY LAVROV v. RUSSIA
Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra
6. The applicant was born in 1967 and lives in Chelyabinsk. 7. In 2012 the applicant, while serving a prison sentence, was diagnosed with lymphoma. He was admitted to prison hospital no. 3 of the Chelyabinsk Region and underwent two courses of chemotherapy. 8. In December 2012 a court authorised the applicant’s early release on health grounds. He was then monitored by an oncologist in a civil hospital, having continued with chemotherapy. The Government submitted that in May 2013 the applicant had undergone an in-depth examination in the oncology department of the Chelyabinsk regional hospital, where he was diagnosed with lymphoproliferative disorder affecting the cervical, axillary, mediastinal and retroperitoneal lymph nodes. The applicant did not complete the medical examinations or treatment, including chemotherapy. He was arrested on 10 September 2013. 9. By judgments of 30 September 2013, 22 November 2013, and 16 December 2013 the applicant was convicted of fraud, robbery and theft respectively. He was sent to serve his sentence in detention facility no. 3. On 3 March 2014 he was transferred to the prison tuberculosis hospital. 10. On 13 March 2014 a medical panel, comprising the deputy head of the prison tuberculosis hospital and doctors from the same hospital, examined the applicant and diagnosed him with progressive non-Hodgkin lymphoma in acute III B stage, with lesions of the cervical, axillary and abdominal lymph nodes. The panel concluded that the applicant was eligible for early release as he suffered from malignant formations of lymphatic and haematogenous tissues, a disease included in the List of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation of 6 February 2004 (hereinafter “the List”). 11. On 10 April 2014, with reference to the conclusions of the medical panel, the applicant made an application for early release. On 26 May 2014 the Metallurgicheskiy District Court of Chelyabinsk dismissed the application. Having accepted that the applicant’s illness was included in the List, and describing his condition as “stable [but] serious”, the court, nevertheless, found that the drugs necessary for his treatment were available in the prison tuberculosis hospital, and that the applicant was undergoing the necessary medical procedures. The court further pointed out that it was not clear who would take care of the applicant in the event of his release from prison. The applicant did not appeal against the decision. 12. On 30 June 2014 the applicant’s sister gave a written undertaking to take care of the applicant should he be released. 13. According to a certificate issued by the prison tuberculosis hospital at the request of the applicant’s lawyer, the drugs necessary for the applicant’s chemotherapy were unavailable at the hospital. 14. On 1 July 2014 the medical panel from the prison tuberculosis hospital again examined the applicant. The diagnosis was that the applicant had progressive non-Hodgkin lymphoma in acute IV B stage with lesions of the abdominal lymph nodes. It was once again noted that the applicant was eligible for release on health grounds. 15. The applicant made another application for release at the end of July 2014. He submitted that his disease had progressed to its final stage and that he had relatives who could take care of him. 16. On 12 September 2014 the Metallurgicheskiy District Court held a hearing. B., a doctor from the prison tuberculosis hospital, testified that the applicant needed chemotherapy and radiation therapy, but was unable to receive such treatment in detention since the necessary equipment was unavailable at the hospital. On the same date the District Court dismissed the application for release once again, noting that the applicant had a tendency to reoffend and concluding that he was receiving adequate medical care in detention. 17. The applicant appealed. 18. In October 2014 the applicant asked the Court to apply Rule 39 of the Rules of Court and to authorise his immediate release from detention as an interim measure. The applicant claimed that he was not receiving the necessary medical assistance and treatment in detention, despite his suffering from a life-threatening and rapidly progressing illness. He relied on a certificate from the prison hospital confirming the absence of drugs for his chemotherapy (see paragraph 13 above). 19. On 16 October 2014 the Court decided to indicate to the Russian Government, under Rule 39, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts, including an oncologist, independent from the prison system with a view to determining: (1) whether the treatment he was receiving in detention was adequate for his condition; (2) whether his current state of health was compatible with detention in the conditions of a correctional colony or prison hospital; and (3) whether his current condition required his placement in a specialised hospital or release. The Russian Government were also asked to ensure the applicant’s immediate transfer to a specialised hospital if the medical experts concluded that the applicant required placement in such a hospital. 20. On 7 November 2014 the Government responded to the Court’s letter of 17 October 2014, submitting the following documents: - a handwritten copy of the applicant’s medical history drawn up during his detention. The history included a form for consent to treatment, signed by the applicant. It also contained a detailed schedule showing the daily intake of drugs by the applicant. As appears from that document, he received basic analgesic and anti-inflammatory drugs, antihistamines, sleeping pills, antidepressants, antiemetics and neuroleptics. - certificates issued by the acting head of the prison tuberculosis hospital, indicating that the applicant had not been provided with chemotherapy for his lymphoma as he had not consented to that treatment when it had been offered to him, in March and June 2014. According to the acting head of the hospital, the applicant had refused to make a written statement to that effect. The certificate also indicated that an oncologist had examined the applicant four times, once in March and September 2014 and twice in October 2014. At the end of October 2014 the applicant’s condition was considered to be serious: he was suffering severe pain and increasing asthenia, had coughed blood, and his lymph nodes continued to grow. In another certificate, the acting head of the hospital stressed that the applicant was suffering from a life-threatening oncological disease, particularly taking into account the advanced stage of his illness. In addition, in a separate certificate, the acting head of the hospital noted that the prison tuberculosis hospital where the applicant was detained employed an oncologist and had the necessary medicines for the applicant’s treatment. - copies of the applicant’s complaints to various Russian officials, including the Chelyabinsk regional ombudsman, the Prosecutor General’s office, the regional department for the execution of sentences and the acting head of the prison tuberculosis hospital, about the poor quality of his medical care in detention. The complaints also contained a request for a medical examination and for his early release on health grounds. 21. The Government also answered the three questions which, in its letter of 17 October 2014, the Court had asked them to refer to independent medical experts. In particular, in their answer to the first question concerning the adequacy of the applicant’s treatment, the Government stressed that the applicant had regularly undergone in-patient treatment and examinations in relation to his oncological illness. They noted that the applicant’s condition was considered to be moderately serious and stressed that in March and June 2014 he had failed to consent to the cancer treatment. They further directed the Court to the documents enclosed with their reply (see paragraph 20 above). 22. In their response to the second question about the compatibility of the applicant’s state of health with the conditions of the correctional colony and prison hospital, the Government emphasised that the applicant’s hospital employed the necessary specialists, and had the necessary equipment and drugs to treat him. They further noted that the applicant was in pain and was weak, that he occasionally coughed blood and that his lymph nodes continued to grow. The Government continued by indicating that he would be provided with chemotherapy as soon as the general blood test results allowed and the applicant consented. 23. In replying to the third question as to whether the applicant needed to be transferred to a specialised hospital or be released, the Government observed that the applicant’s oncological illness was incurable and could lead to his death. They relied on the two reports issued by the doctors from the prison tuberculosis hospital on 13 March and 1 July 2014, according to which the applicant was suffering from a condition included in the list of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation. However, the Russian courts had refused to release the applicant on health grounds. Another examination of the applicant by the hospital medical panel had been scheduled for November 2014. 24. The applicant informed the Court that on 28 November 2014, acting upon his appeal, the Chelyabinsk Regional Court had quashed the decision of 12 September 2014 and ordered his release. With reference to B.’s testimony, the Regional Court held that the District Court’s findings as to the adequacy of the treatment received by the applicant in the hospital were not in accordance with the established facts. It also pointed to the District Court’s failure to comment on the undertaking by the applicant’s sister to take care of the applicant after his release. 25. On an unspecified date after 28 November 2014 the applicant was released.