CASE OF E.A. v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
6. The applicant was born in 1966. After his release from detention in 2008 the applicant resided in the town of Perm. 7. The applicant arrived in Russia from Uzbekistan in 2002 or 2003. He was arrested on 11 August 2003 in the town of Perm in relation to criminal proceedings against him (see paragraph 25 below). 8. During his admission to Perm detention centre no. 1 in August 2003 the applicant had a check-up and was questioned about his past illnesses. According to the documents submitted by the Government, since the 1990s the applicant had been suffering from pulmonary tuberculosis and had received treatment in Uzbekistan. According to the applicant, in 1995 and 1998 he had pneumonia and had no pulmonary tuberculosis before his arrest in August 2003. 9. The applicant had a chest fluorography examination in the detention centre and was examined by a chest physician who prescribed treatment (such as ethambutol and B6 vitamin) in relation to his tuberculosis. On 18 August 2003 a blood sample from the applicant was submitted for HIV testing (an “enzyme-linked immunosorbent assay”). An additional similar test and a confirmatory test (“western blot”) were carried out on 3 and 4 September 2003 respectively. 10. The case file contains a document dated 9 September 2003 which appears to be the record of the HIV-related initial physical examination (involving, inter alia, vital signs, lymph nodes, skin, thorax and lungs). The applicant’s weight was 73 kg. The reference to the HIV stage is not legible. The next check up was scheduled for February 2004. The Government also submitted the applicant’s “epicrisis” record for 2003, which indicates HIV stage 2Б under the domestic classification (see paragraph 29 below). It is indicated in the record that during 2003 the applicant did not request any treatment or medication. Another document entitled “Plan for treatment in 2003” indicated that the applicant was to be examined in February 2004. This document did not specify any treatment, including HIV-related medication. 11. It can be seen from the typed copy of the applicant’s medical file that on several occasions in late 2003 and early 2004 he was examined by a chest physician who maintained his medication in relation to tuberculosis. 12. After the closure of the criminal proceedings against him (see paragraph 25 below), in June 2004 the applicant was transferred to prison no. 12 in the Perm region. Subsequently, he also spent periods of time in prison no. 9, as well as in the psychiatric and other units of the hospital for detainees (August - October 2004, February - March 2005, July 2005 and several months in 2006 and 2007). The applicant was treated, inter alia, for tuberculosis, gonorrhoea, haemorrhoids, hepatitis C, a psychiatric condition, and in relation to acts of self-mutilation. 13. In particular, in September 2004 the applicant was admitted to tuberculosis hospital no. 7 in relation to the progression of his infection with the hepatitis C virus. He had a number of blood tests, such as a full blood count (including leukocytes, erythrocytes, and lymphocytes), a urine test, a chest fluorography, an X-ray and an abdominal ultrasound scan, and was examined by a chest physician and a neurologist. It appears that, although scheduled, a consultation by an infectious disease specialist was not provided. It is indicated in one of the documents submitted by the Government that the applicant’s weight dropped to 60.5 kg in September 2004. However, it can be seen from the record of a check-up done on 1 October 2004 that his weight was then 70 kg. This record mentions HIV stage 2 or 3 (not clearly legible). The next check-up was scheduled for April 2005. 14. The Government submitted a handwritten medical document (which appears to relate to 2004) bearing the stamp of prison no. 9 and indicating HIV stage 3A. 15. It appears that in April 2005 the applicant was examined by an infectious disease specialist who prescribed laboratory testing for bilirubin and some laboratory tests in relation to liver function. The record of a check-up of the applicant of 25 July 2005 indicates HIV stage 2Б. The next check-up was scheduled for 25 January 2006. 16. In July 2005 the applicant complained that he was not being provided with adequate medical treatment in relation to his diseases, in particular as regards his HIV infection. The Kizel prosecutor’s office in charge of the supervision of prisons examined the applicant’s complaint and stated that the applicant had been provided with medical care free of charge, and that he had been regularly admitted to a medical facility and had consultations by infectious disease specialists. The prosecutor’s office also mentioned that no funds had been allocated to prison no. 12 for out-patient treatment of HIV-positive detainees in 2005 and thus the relevant medication had not been available there. 17. In March 2006 the applicant was again hospitalised and his discharge certificate refers to HIV stage 3. In July 2006 he had a periodic check-up; the record indicates HIV stage 3 (corrected from “4”). 18. In July 2006 the applicant complained about the issue of medical care to the Federal Department for the Execution of Sentences. This authority stated in reply that an infectious disease specialist had concluded that antiretroviral therapy (ART) was not necessary. Another similar complaint was examined in August 2006 by the Kizel prosecutor’s office in charge of the supervision of prisons. Dismissing the applicant’s complaint, this authority mentioned that prison hospital no. 9 had facilities for carrying out an immunological assessment, should it be prescribed for the applicant. So far there had been no indications for such an assessment. 19. In September 2006 the Medical Office of the Regional Department for the Execution of Sentences examined and dismissed the applicant’s further complaint relating to his HIV treatment. They stated that the applicant had received the necessary testing and medication, as well as consultations by specialist doctors, including an infectious disease specialist. They indicated that a decision on immunological assessment had to be taken by a medical professional. The applicant’s illnesses and their staging had not, at the relevant time, required ART. 20. Between October 2006 and May 2007 the applicant was kept in hospital no. 7 in the Perm region, on account, in particular, of the aggravation of his pulmonary tuberculosis. According to the Government, in October 2006 the applicant failed to comply with unspecified recommendations made by the regional centre for the prevention of and fight against AIDS and infectious diseases (“the AIDS centre”). 21. The applicant had a check up in January 2007; the record indicates HIV stage 4Б. In March 2007 he underwent an immunological assessment. It appears that he started a highly active antiretroviral therapy (HAART) regimen in April 2007. In early 2008 the regimen was adjusted. 22. The applicant sought early conditional release. By a judgment of 4 September 2008 the Solikamsk Town Court of the Perm Region granted his application and ordered his release, considering that his continued detention was not necessary for the purposes of his “correction”. The applicant was released soon thereafter. The court ordered him to report to the supervising authority and not to change his place of residence without prior notice to that authority. 23. According to the applicant, the administration of the detention facility told him that he had fifteen days to leave Russia or he would be deported. 24. According to the Government, in October 2008 and January 2009 the applicant attended the AIDS centre, where he confirmed that he was taking medication. 25. On 15 April 2004, rejecting the applicant’s plea of self-defence, the Leninskiy District Court of Perm convicted the applicant of causing injuries to one person and causing fatal injuries to another person. The court sentenced the applicant to six years and one month of imprisonment. On 25 May 2004 the Perm Regional Court upheld the judgment. The applicant made submissions through a videoconferencing facility from the remand centre. 26. The applicant served his sentence of imprisonment from June 2004 to September 2008, when he was released (see paragraphs 12 and 22 above). 27. By Decree no. 170 of 16 August 1994 the Federal Ministry of Health adopted Guidelines relating to HIV/AIDS Diagnosis and Treatment (section 1) and Dispensary Supervision (section 2). The Guidelines state as follows. 28. There is a clear link between the illness’s progress and the reduction of CD4 lymphocytes, the latter process being the main feature of HIV pathogenesis (point 1.1.). Staging of HIV should be determined depending on clinical and other relevant considerations listed in the Guidelines (points 1.3. and 1.5.). An HIV-positive person should be subjected to an initial examination confirming the HIV diagnosis and determining the stage of the illness and any concomitant illnesses. The initial examination should include, inter alia, HIV serological testing (an enzyme-linked immunosorbent assay test and a western blot test) and a CD4 cell count (point 2.1. of the Guidelines). Subsequent examinations should be carried out in accordance with the gravity of the patient’s state of health, or on a periodic basis. A subsequent examination at HIV stage 2 or 3 should be carried out in twelve months for a CD4 cell count of below 500, and in twenty-four months for a CD4 cell count of above 500 or if unknown. 29. Basic therapies include ART and prophylaxis to prevent secondary diseases. Antiretroviral therapy should be prescribed at stages 2A, 3A, 3Б and 3B (under the Russian classification) during periods of clinical activity and with regard to the clinical data (point 1.6.2.1. of the Guidelines). As to periods of remission, sustaining ART should be provided, with regard to clinical and immunological assessment. Depending on the CD4 level, the therapy should be constant or administered in three-month periods with three-month interruptions. If the CD4 level is not known, no sustaining therapy should be provided in certain situations or at stage 3A. 30. Federal Law no 38-FZ on the Prevention of HIV Propagation in Russia provided, in its pre-January 2005 version, that the State guaranteed the availability of the relevant examinations for detecting HIV infection; diagnosis and treatment; and provision of free medical care to HIV-positive Russian citizens (section 4 of the Law). 31. In 2004 the World Health Organisation (WHO) published its Guidelines “Scaling up Antiretroviral Therapy in Resource-Limited Settings. Guidelines for a public health approach.” They read as follows: “WHO recommends that, in resource-limited settings, HIV-infected adults and adolescents should start ARV therapy when the infection has been confirmed and one of the following conditions is present. *Clinically advanced HIV disease: -WHO Stage IV HIV disease, irrespective of the CD4 cell count; -WHO Stage III disease with consideration of using CD4 cell counts <350/mm3 to assist decision-making. *WHO Stage I or II HIV disease with CD4 cell counts <200/mm3... ... The treatment of patients with WHO Stage IV disease (clinical AIDS) should not be dependent on a CD4 cell count determination. However, where available, this test can be helpful in categorizing patients with Stage III conditions with respect to their need for immediate therapy. For example, pulmonary TB can occur at any CD4 count level and, if the CD4 cell count level is well maintained (i.e. >350/mm3), it is reasonable to defer therapy and continue to monitor the patient. For Stage III conditions a threshold of 350/mm3 has been chosen as the level below which immune deficiency is clearly present such that patients are eligible for treatment when their clinical condition portends rapid clinical progression ... For patients with Stage I or Stage II HIV disease the presence of a CD4 cell count <200/mm3 is an indication for treatment. In cases where CD4 cell counts cannot be assessed the presence of a total lymphocyte count of 1200/mm3 or below can be used as a substitute indication for treatment in the presence of symptomatic HIV disease. While the total lymphocyte count correlates relatively poorly with the CD4 cell count in asymptomatic persons, in combination with clinical staging it is a useful marker of prognosis and survival. An assessment of viral load (e.g. using plasma HIV-1 RNA levels) is not considered necessary before starting therapy. Because of the cost and complexity of viral load testing, WHO does not currently recommend its routine use in order to assist with decisions on when to start therapy in severely resource-constrained settings. It is hoped, however, that increasingly affordable methods of determining viral load will become available so that this adjunct to treatment monitoring can be more widely employed. It should be noted that the current WHO Staging System for HIV Infection and Disease for Adults and Adolescents was developed several years ago and has consequent limitations. Adaptations at the level of national programmes may therefore be appropriate. Nevertheless, it remains a useful tool for assisting in defining parameters for initiating therapy in resource-limited settings and thus has continued to be applied in this revision.” Under these Guidelines, if CD4 testing was, at the time, not available, it was recommended that ART be offered to patients with: (i) WHO Stage IV disease, irrespective of the total lymphocyte count; (ii) WHO Stage III disease, irrespective of the total lymphocyte count, the recommendation to start ART in all patients with stage III disease without reference to total lymphocyte counts reflecting, in the WHO’s opinion, the consensus of expert opinion; and (iii) WHO Stage II disease with a total lymphocyte count ≤ 1200/mm3. A total lymphocyte count of ≤ 1200/mm3 could be substituted for the CD4 count when the latter was unavailable and HIV-related symptoms existed. It was not useful in the asymptomatic patient. Thus, in the absence of CD4 cell testing, asymptomatic HIV-infected patients (WHO Stage I) should not be treated because there was currently no other reliable marker available in severely resource-constrained settings. 32. In 2004 the WHO also published “HIV/AIDS Treatment and Care. WHO Protocols for countries of the Commonwealth of Independent States”. The Protocols provide that the initial evaluation of an HIV positive patient must, inter alia, include routine laboratory assessments (haemoglobin, white blood cell count and differential, urinalysis, liver function tests, creatinine) and a CD4 cell count. ART should be started at (i) stage IV irrespective of CD4 cell count; (ii) stage III disease if symptoms present (including, but not restricted to, chronic diarrhoea of unknown aetiology, prolonged fever of unknown aetiology, pulmonary tuberculosis, recurrent invasive bacterial infections, or recurrent/persistent mucosal candidiasis), with consideration given to using CD4 cell counts < 350/mm3 to assist decision making. A CD4 count is advisable to assist with determining the need for immediate therapy. For example, pulmonary TB may occur at any CD4 level and other conditions may be mimicked by non-HIV aetiologies (for example, chronic diarrhoea, prolonged fever); (iii) stage I or II disease with CD4 cell counts = 200/mm3. The precise CD4 level above 200/mm3 at which ART treatment should be started is not established. ART is recommended for all patients with TB with a CD4 count < 200 cells/mm3 and should be considered for patients with CD4 < 350 cells/mm3. 33. In 2006 the WHO issued revised guidelines: “Antiretroviral therapy for HIV infection in adults and adolescents. Recommendation for a public health approach.” (with previous updates from 2003). They read as follows: “In resource-limited settings the decision to initiate ART in adults and adolescents relies on clinical and immunological assessment. In order to facilitate the rapid scale-up of ART programmes with a view to achieving universal access to this therapy, WHO emphasizes the importance of using clinical parameters in deciding when to initiate it. However, it is recognized that the value of clinical staging in deciding when to initiate and monitor ART is improved by additional information on baseline and subsequent (longitudinal) CD4 cell counts. While WHO continues to advocate wider availability of affordable point-of-care CD4 cell count testing, the lack of a CD4 count should not delay the initiation of ART if the patient in question is clinically eligible. WHO encourages national programmes to increase access to CD4 measurement technologies ... Clinical staging is intended for use where HIV infection has been confirmed by HIV antibody testing. It should form part of the baseline assessment (first visit) on entry into a care and treatment programme and is used to guide decisions on when to start co-trimoxazole prophylaxis and when to start and switch ART in situations where CD4 testing is not available ... ART results in improvement in clinical status and brings about effective reversal of the clinical stage in patients with symptomatic disease. However, the value of clinical staging in monitoring the efficacy of ART, defining ART failure and determining when to switch ART is less clear. Studies are urgently needed to address the use of clinical criteria (clinical stage on treatment) in deciding when to switch ART in the absence of CD4 cell counts or viral load testing. The optimum time to commence ART is before patients become unwell or present with their first opportunistic infection. Immunological monitoring (CD4 testing) is the ideal way to approach this situation. A baseline CD4 cell count not only guides the decision on when to initiate ART but is also essential if CD4 counts are to be used to monitor ART ... The benchmark threshold marking a substantially increased risk of clinical disease progression is a CD4 cell count of 200 cells/ mm3. Although it is never too late to initiate ART, patients should preferably begin the therapy before the CD4 cell count drops to or below 200 cells/mm3 [A-III]. The optimum time to initiate ART with a CD4 cell count of 200−350 cells/ mm3 is unknown. Patients with CD4 cell counts in this range require regular clinical and immunological evaluation. The treatment of patients with WHO clinical stage 4 disease should not depend on a CD4 cell count determination: all such patients should initiate ART [A-III]. For WHO clinical stage 3 conditions, a threshold of 350 cells/ mm3 has been identified as a level below which functional immune deficiency is present and ART should be considered. This level also conforms to what is indicated in other consensus guideline documents. 4 CD4 cell counts can be helpful in categorizing patients with stage 3 conditions in respect of their need for immediate therapy. For example, pulmonary tuberculosis or severe bacterial infections can occur at any CD4 count level and it is reasonable to delay ART and continue to monitor patients with CD4 cell counts above 350 cells/ mm3. However, the initiation of ART is recommended for all HIV-infected individuals with pulmonary TB and CD4 counts below 350 cells/ mm3 ... and also for patients with severe bacterial infections who have CD4 counts below this value.” 34. According to the WHO Clinical Protocols on HIV/AIDS Treatment and Care, adopted in 2007, the core component of treating HIV-positive persons is the provision of ART, including HAART, combining three or more drugs. The initial evaluation of a patient should include confirmation of HIV infection status with the potential time of infection established, if possible; a detailed personal, family and medical history; a physical examination; laboratory and other examinations; specialist examinations, as appropriate; and clinical and immunological staging. Clinical staging (stage 3 or 4) and CD4 counts are the best primary markers and viral load the secondary marker for deciding whether to start ART. 35. In 2010 the WHO issued a revised and updated version of the Guidelines “Antiretroviral therapy for HIV infection in adults and adolescents. Recommendation for a public health approach.” The revised text indicates that all adolescents and adults with HIV infection and CD4 counts of or less than 350 cells/mm3 should start ART, regardless of the presence or absence of clinical symptoms. Those with severe or advanced clinical disease (WHO clinical stage 3 or 4) should start ART irrespective of their CD4 cell count. All patients should have access to CD4 cell-count testing to optimise pre-ART care and ART management. Viral-load testing is recommended to confirm suspected treatment failure. Irrespective of CD4 cell counts, patients co-infected with HIV and tuberculosis should be started on ART as soon as possible after starting TB treatment. 36. The United Nations Guidelines on HIV/AIDS and Human Rights, under the heading “Freedom from Cruel, Inhuman or Degrading Treatment or Punishment” state that denial to prisoners of access to HIV-related health care can constitute cruel, inhuman or degrading treatment, whereas prisoners suffering from AIDS should be considered for early release and given proper treatment outside prison. 37. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: 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.”