CASE OF KHAYLETDINOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1953 and is serving his sentence in correctional colony no. 2 in the Astrakhan Region. 6. On 9 May 2012 the applicant was arrested on suspicion of murder committed during a fight with the victim. Two days later the Kirovskiy District Court of Astrakhan authorised his remand in custody, having noted the gravity of the charges, his previous convictions, including for violent crimes, his failure to “get on the road to improvement”, the absence of an “official” source of income, and his lack of dependants. 7. That decision was upheld on appeal by the Astrakhan Regional Court, which fully endorsed the District Court’s reasoning. In addition, the Regional Court took into account that the applicant was suffering from the human immunodeficiency virus (HIV) but stated that there was no medical evidence that he could not continue being detained in the conditions of a temporary detention facility. 8. Another extension of the applicant’s detention followed on 9 July 2012, when the District Court accepted the investigator’s arguments that he was likely to re-offend, abscond and interfere with the investigation. The District Court linked those risks to the gravity of the charges against the applicant, his having received “negative characteristics” at his place of residence, as well as his having already been “the subject of criminal prosecution”. At the same time the court examined medical evidence produced by the applicant in support of his claim that the fact that he was suffering from an advanced stage of HIV precluded his detention. The District Court dismissed the claim, stressing that the applicant regularly received medication prescribed by a prison doctor and that his detention in the temporary detention facility did not pose a risk to his health. 9. The District Court issued further orders extending the applicant’s pretrial detention on 2 August, 6 September and 7 November 2012. Each time, it relied on the gravity of the charges and the risk flowing of the applicant absconding, interfering with the course of justice and reoffending. Neither detention order mentioned that the applicant had a criminal record. The applicant’s arguments about the progress of his HIV infection and the rapid deterioration of his health did not convince the District Court. The order of 7 November 2012 extended the applicant’s detention until 9 December 2012. It was upheld on appeal by the Astrakhan Regional Court on 14 November 2012, with reference to the gravity of the charges and the applicant’s “personality”. The relevant part of the decision reads as follows: “On 11 May 2012 ... the Kirovskiy District Court of Astrakhan ordered [the applicant’s] detention. Subsequently, the detention was lawfully extended. ... In extending the detention for up to seven months, the court reasonably took into account that [the applicant] was charged with a particularly serious criminal offence and that, in view of hiswas liable to reoffend or destroy the evidence. The court also correctly held that the case was particularly complex, due to the large number of investigatory activities and complex expert examinations to be conducted. The court also took into account the applicant’s lengthy treatment in the prison hospital. The court correctly concluded that there were no grounds for changing the measure of restraint.” The Regional Court did not address the applicant’s arguments, raised in his statement of appeal, that the investigating authorities significantly delayed a number of procedural actions, including the expert examination scheduled as early as June 2012 and not yet performed. 10. The District Court further extended the applicant’s pre-trial detention on 8 December 2012, summarily referring to his “personality” and “socially dangerous conduct”. The court also pointed out that some unspecified expert examinations had been conducted, which had “objectively influenced the length of the investigation”. 11. On 30 December 2012 the applicant’s pre-trial detention was again extended on the grounds of the gravity of the charges and the continued risk of his absconding and interfering with the course of justice. The court used similar wording as in the previous detention orders. 12. On 16 March 2013 the applicant was served with the final version of the bill of indictment. The bill indicated that the applicant had no criminal record. 13. On 6 August 2013 the District Court convicted the applicant of murder. The court found that he had killed the victim in the course of an altercation caused by the victim’s insults. The District Court sentenced the applicant to seven years of imprisonment, having taken into account the following mitigating circumstances: the applicant had no criminal record, was “positively characterised”, had surrendered himself to the police, had confessed to the killing and felt deep remorse, and the victim had behaved provocatively having initiated the conflict with the applicant. 14. In January 2004 the applicant was diagnosed with stage 4A HIV. He was taken under the supervision of specialists of the Astrakhan Regional Centre for Protection from AIDS (hereinafter “the AIDS Centre”). 15. Medical certificates provided by the applicant show that he had started receiving antiretroviral therapy on 22 March 2011 with very positive results. The viral load had significantly decreased and the applicant’s immune status had improved. A CD4 cell-count test carried out on 17 February 2012 showed that the level of CD4 cells was 489 cells/mm3. 16. On 11 May 2012 the applicant was placed in detention facility no. 1. On the same date he was examined by a doctor, who recorded no complaints and diagnosed him with a stomach ulcer in remission. 17. On 26 June 2012 doctors from the AIDS Centre recorded a deterioration in the applicant’s condition. They recommended continuation of the antiretroviral therapy and an in-patient examination. 18. Between 12 July and 12 September 2012 the applicant underwent a check-up in the prison hospital of correctional colony no. 2 (“the hospital”). He was diagnosed with chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, fungal esophagitis, urolithiasis, and hepatic haemangioma. 19. It appears that on 16 July 2012 an immunological test was performed. It showed that the level of CD4 cells was 649 cells/mm3. 20. Since August 2012 the doctors have again recorded a deterioration in the applicant’s condition and an increase in his viral load. They linked the deterioration to prior interruptions in the antiretroviral therapy. It is not clear from the documents submitted by the applicant when and why those interruptions occurred. 21. On 20 September 2012 a doctor from the AIDS Centre diagnosed the applicant with stage 4A HIV and fungal esophagitis, and recommended that antiretroviral therapy be continued. 22. On 26 September 2012, on a recommendation of the medical staff of the AIDS Centre, the applicant was again admitted to the hospital. He underwent treatment for HIV and fungal esophagitis. On 8 October 2012 he returned to the detention facility. 23. Throughout his detention the applicant was prescribed a special diet. 24. According to a typed copy of the applicant’s medical file provided by the Government, on admission to detention facility no. 1 the applicant was examined by a doctor whom he informed that he was suffering from HIV. 25. On 16 May 2012 medical staff from the AIDS Centre were allowed to see the applicant. The doctors noted that he was suffering from stage 4A HIV and recommended that his antiretroviral therapy be continued. On the same date the applicant received one month’s dose of antiretroviral drugs (Reyataz and Combivir). 26. The applicant continued being monitored by the medical staff of the AIDS-Centre, who examined him again on 26 June 2012. Following their recommendations, and in response to the applicant’s complaint of fatigue and pain in the epigastrium (upper abdomen), on 12 July 2012 he was transferred to the hospital for an in-depth examination. On the same date it was noted in his medical file that he was receiving antiretroviral drugs. The entries dated 2 and 6 August 2012 indicated that he had been taking those drugs. 27. While at the hospital, the applicant was monitored by an infectious diseases specialist, who examined him on twenty-four occasions. The applicant also underwent an ultrasound examination and a fibrogastroduodenoscopy. On 27 August 2012 he was examined by an urologist and a gastroenterologist in a civil hospital. He was also observed by an otolaryngologist and a neurologist. The final diagnosis was: HIV infection aggravated by secondary illnesses, chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, oesophageal candidiasis, hepatic hemangioma, chronic prostatitis, chronic cholecystitis, fungal esophagitis, and a duodenal bulb ulcer. The applicant received treatment for those illnesses. 28. On 12 September 2012, having found that the applicant’s condition had improved, the hospital discharged him. 29. On 20 September 2012 a doctor from the AIDS Centre examined the applicant at the detention facility. The doctor noted that the applicant was taking the antiretroviral drugs with strict adherence, and recommended virological and immunological testing, as well as another ultrasound examination and a fibrogastroduodenoscopy. 30. On 26 September 2012 the applicant was admitted to the hospital for additional tests. On 8 October he was transferred back to the detention facility. 31. On 18 October 2012 the applicant complained of fatigue, coughing and headaches. A doctor diagnosed chronic bronchitis and prescribed him anti-candidiasis and cough medication, as well as vitamins. 32. On 4 November 2012 an entry made in the applicant’s medical file indicated that the “last” immunological test had shown the level of CD4 cells at 513 cells/mm3. 33. On 13 November 2012 the applicant complained to a doctor of heaviness in his abdomen, dizziness and heartburn. The doctor noted that those were the effects of his not complying with the special diet and prescribed medication for his ulcer and gastroduodenitis. 34. On 27 November 2012 the applicant was examined in response to his complaints of fatigue, pain in the abdomen, and pyrosis. The doctor noted that the applicant had been receiving antiretroviral therapy and recommended his transfer to hospital for an examination and another diagnosis. 35. On the applicant’s admission to the hospital on 3 December 2012, his complaints of fatigue, heartburn and stomach aches were recorded. On the same date it was again noted that he was receiving antiretroviral drugs. At the hospital he was seen by an infections specialist several times a week, examined by a neurologist and an otolaryngologist, and underwent a fibrogastroduodenoscopy. In addition to his previously recorded illnesses, the applicant was diagnosed with a prostate adenoma. He received treatment for his non-communicable diseases, and was prescribed the same antiretroviral drugs as before. 36. On 18 January 2013 the applicant was dismissed from the hospital “in a satisfactory condition”, with the proviso that he had to be actively supervised by the detention facility medical personnel. On the same date he was examined by a doctor at the detention facility. The doctor noted that the applicant needed “dynamic supervision” and prescribed medication for his pancreatitis and stomach ulcer. 37. On 23 January 2013, in response to the applicant’s complaint of back pains, he was prescribed anti-inflammatory drugs. 38. On 12 February 2013 the applicant complained to a psychiatrist of sleeping problems and irritability, and was prescribed antidepressants. 39. On 20 March 2013 a doctor from the AIDS Centre paid the applicant a visit. Following the doctor’s recommendation, the applicant was yet again admitted to hospital. On arrival he complained of poor appetite, fatigue, heartburn, pains in his chest and stomach ache. He was then seen by an infectious diseases specialist, an ophthalmologist, an otolaryngologist, a cardiologist and a neurologist. They concluded that there was no change in his diagnosis and prescribed him treatment for the non-communicable infections. On 3 April 2013 it was noted that the applicant was regularly taking antiretroviral drugs. A week later, despite the lack of significant improvement in his condition, he was discharged from the hospital since he had to appear at a court hearing. 40. On 19 June 2013 the applicant was re-admitted to the hospital. Under the supervision of the infectious diseases specialist he received treatment for cholecystitis and gastroduodenitis. He was also examined by a neurologist, an otolaryngologist and an ophthalmologist, and was diagnosed with cerebrovascular disease. An entry in the record of 19 June 2013 showed that the applicant had enough drugs to last until 23 June 2013. The entry dated 25 June 2013 mentioned that he had not complied with the special diet prescribed to him. On 9 July 2013 the applicant was discharged in “satisfactory condition”, having been provided with antiretroviral drugs until 23 July 2013. 41. On the applicant’s admission to correctional colony no. 2 on 24 October 2013, he was examined by prison doctors, who noted that he was receiving antiretroviral therapy. 42. On 20 November 2013, in response to the applicant’s complaints of pain in the abdomen, he was examined by a prison doctor. A fibrogastroduodenoscopy was carried out on 22 November 2013, and he was prescribed medication for gastroduodenitis. 43. On 10 December 2013 the applicant was examined by an infectious diseases specialist from the AIDS Centre. The doctor observed the applicant’s complaints of pain in the oesophagus and the chest, and noted that he was receiving antiretroviral drugs, namely Reyataz and Combivir. The doctor recommended that the applicant continue with the therapy and undergo an immunological test. He also suggested that he be subjected to an in-patient examination. The applicant refused to be admitted to the hospital. 44. On 12 and 16 November 2012 the applicant’s lawyer wrote to the administration of detention facility no. 1, drawing their attention to the applicant’s state of health and asking for his examination by a medical expert. On 13 November 2012 the facility director informed the lawyer that there was no evidence that the applicant was suffering from an illness preventing detention and that, accordingly, there were no grounds for a medical expert examination. 45. On 4 February 2013 the applicant’s lawyer reiterated his request. 46. On 10 December 2012 the applicant’s lawyer requested the investigator in charge of the applicant’s criminal case to order a medical examination of the applicant. On 13 December 2012 the request was refused. However, on 4 February 2014 that decision was revoked, and the applicant’s medical expert examination was authorised. 47. On 17 January 2013 the applicant’s lawyer complained to the Kirovskiy District Court of Astrakhan of the correctional colony administration’s inaction and asked the court to authorise the applicant’s medical examination. On 1 April 2013 the court dismissed the complaint and refused the examination request.