CASE OF IVKO v. RUSSIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
6. The applicant was born in 1973 and until his arrest lived in the town of Volzhskiy, Volgograd Region. 7. On 16 October 2007 the applicant was arrested on suspicion of attempted drug trafficking and placed in custody. He remained in detention throughout the investigation and trial. 8. On 28 May 2008 the Volzhsk Town Court (“the Town Court”) convicted the applicant of attempted drug trafficking and sentenced him to six years’ imprisonment in a high-security correctional colony. The court noted that the term of the applicant’s detention was to be calculated with effect from the date of his arrest on 16 October 2007. 9. On 9 September 2008 the Volgograd Regional Court upheld the sentence on appeal. It mentioned, inter alia, that at the time of the hearing the applicant was detained in temporary detention facility no. IZ-34/5 in the town of Leninsk in the Volgograd Region. 10. The applicant asked the Presidium of the Volgograd Regional Court to re-examine his case by way of a supervisory review. In February and March 2009 the applicant submitted additional observations to the Presidium, which were dispatched from facility no. IZ-34/5. The application for supervisory review was rejected. 11. The applicant’s request for a re-examination of his case by way of a supervisory review was, however, granted by the Supreme Court of Russia, which on 13 January 2010 reduced the applicant’s sentence to five years and six months’ imprisonment. 12. Having served his sentence in full, the applicant was released from detention on 15 May 2013. 13. On 15 July 2013 the applicant was arrested on suspicion of another episode of attempted drug trafficking. 14. On 27 September 2013 the Town Court convicted the applicant of attempted drug trafficking and sentenced him to three years’ imprisonment in a high-security correctional colony. 15. On 11 October 2014 the applicant died in detention. 16. The applicant and the Government offered different versions of the applicant’s detention and treatment in the temporary detention facility. 17. According to the applicant, from 18 October 2007 to 27 June 2009 he was detained mostly in facility no. IZ-34/5. His letters to the Court dated 13 May and 7 December 2008 and 26 August 2009 were dispatched from that facility. A letter from the Court dated 8 June 2009 was sent to and received by the applicant in the same facility. 18. The applicant also submitted that on several occasions he had been transported to court hearings and to penal medical institution no. LIU-15 in Volgograd (“institution no. LIU-15”) and that he had spent very short periods, in transit, in temporary detention facility no. IZ-34/1 of the town of Volgograd. In particular, the applicant had been sent to institution no. LIU15 in 2008, where he had undergone successful treatment for tuberculosis. A chest X-ray examination on 14 January 2008 indicated that his tuberculosis had been cured, although extensive calcification and fibrosis remained in his lungs. On 17 January 2008 a medical commission confirmed his recovery. The applicant was prescribed anti-relapse treatment, but this was never provided to him after his return to the temporary detention facility. 19. The applicant filed a number of complaints ‒ for instance with the Prosecutor’s Office of the Volgograd Region ‒ arguing that he had not been afforded adequate medical treatment in facility no. IZ-34/5. On 31 March 2008 the Prosecutor’s Office re-directed the applicant’s claim to the Federal Service for the Execution of Sentences in the Volgograd Region. A month later the authorities rejected the applicant’s claim as ill-founded. They confirmed that from 18 October 2007 he had been detained in facility no. IZ-34/5. Referring to the decision of the medical commission on 17 January 2008, the authorities held that the applicant’s tuberculosis had been fully cured. 20. The Government, relying on a certificate issued on 18 December 2013 by the head of facility no. IZ-34/1, asserted that from 15 July 2007 to 22 October 2009 the applicant had been detained in that facility. In their observations of 31 January 2014, however, the Government mentioned the applicant’s detention in facility no. IZ-34/5, but did not provide any further details. 21. Despite the Court’s request for the applicant’s entire medical file, the Government submitted no medical documents dating from the period after his arrest and up until 29 October 2009. They merely noted that the applicant had contracted hepatitis C and tuberculosis before his arrest. The applicant did not dispute that submission. 22. On 27 June 2009 the applicant was transferred to correctional colony no. IK-154/9 of the Volgograd Region. 23. According to the applicant, the medical service in the colony was very poor. The colony did not employ a tuberculosis specialist and the detainees’ access to drugs, which were often out of stock, was limited. The applicant only received basic anti-fever medication. 24. The Government did not provide any information regarding the medical assistance afforded to the applicant in colony no. IK-154/9 and did not submit his medical record or any medical certificates from his time there. 25. On 29 October 2012, after the applicant complained of coughing up blood, he was transferred to institution no. LIU-15. 26. The Government provided the Court with copies of the applicant’s medical documents for the period 29 October 2012 to 15 May 2013. 27. The medical records show that on admission to institution no. LIU15 the applicant had undergone a general medical examination, a chest X-ray examination and a clinical blood test. A sputum culture test was performed the next day. The applicant was diagnosed with recurrent smear-positive infiltrative tuberculosis of the upper lobe of his left lung at the stage of lung tissue destruction caused by mycobacterium tuberculosis (“MBT”). He was prescribed protiocomb, a complex medicine containing protionamide, pyrazinamide, ethambutol hydrochloride, lomefloxacin hydrochloride and vitamin B6. 28. On 6 November 2012 the applicant was tested for HIV, syphilis, hepatitis B and C. The test confirmed his hepatitis C infection, but no antibodies associated with the other infections were found. 29. A week later the applicant again underwent a chest X-ray examination. It revealed that the cavity in the lung had decreased in size, and some negative changes in the lung tissues had progressed further. 30. On 20 November 2012 the applicant was examined by a doctor, who noted in the “epicrisis” (medical report issued on the applicant’s discharge) that no significant changes in the applicant’s health had occurred and prescribed continued treatment with protiocomb and ciprofloxacin, an antibiotic used to treat a number of bacterial infections. 31. On 1 December 2012 the applicant’s treatment was modified. He was prescribed a combination of anti-tuberculosis drugs and injections. A chest X-ray examination on 19 December 2012 showed no changes in the applicant’s lungs. 32. The applicant sent an application to the Dzerzhinskiy District Court of the town of Volgograd seeking early release on medical grounds. That request was dismissed on 27 December 2012 upon the court’s finding that the applicant’s state of health did not warrant his release from detention. 33. In February 2013 the applicant’s blood was twice taken for testing and his liver function was tested for the first time. On three further occasions in the same month the institution carried out a sputum culture test and also performed the first drug susceptibility test. The test was smear-positive. It revealed that the MBT was resistant to streptomycin. On 13 and 19 February 2013 the applicant underwent a chest X-ray examination and a tomography examination. They showed no changes. The treatment regimen was modified. The applicant was prescribed, among other medicines, pyrazinamide, ethambutol, prothionamide, cycloserine, rifampicin and isoniazid. 34. As follows from the epicrisis of 27 February 2013 and a “regime violation record” dated 6 March 2013 signed by two deputy heads of institution no. LIU-15 and the head of the detention ward, the applicant refused to take the drugs pyrazinamide, ethambutol, prothionamide and cycloserine ‒ citing their adverse effects on his health through inducing negative development of his hepatitis C ‒ and claiming that doctors should first treat his hepatitis. According to the same record, the applicant also refused to give a written explanation of the reasons for his refusal. 35. On 15 March 2013 the applicant’s X-ray examination established increased infiltration of the left lung tissue. According to a medical certificate dated 20 March 2013, his health had deteriorated due to his consistent refusal to take the prescribed medicines. 36. According to an extract from the applicant’s medical history, on an unspecified date he agreed to take isoniazid, rifampicin and capreomycin on condition that he would be provided with hepatoprotectors. 37. On 15 May 2013 the applicant was released from detention with a diagnosis of infiltrative contagious tuberculosis of the left lung at the stage of lung tissue destruction. 38. From 27 May to 15 July 2013 the applicant received in-patient medical treatment in a civilian anti-tuberculosis hospital, where he was diagnosed with active chronic fibrous-cavernous pulmonary tuberculosis at the stage of infiltration with bacilli emission, as well as hepatitis C. There is no information in the Court’s possession concerning the details of the applicant’s treatment during that period. 39. The parties did not provide the Court with any information about the applicant’s detention and treatment after his renewed arrest on 15 July 2013. The applicant’s letters to Ms Yusupova submitted to the Court indicate that between 16 July and 21 October 2013 he was detained in facilities nos. 34/5 and 34/1, that he had no access to medical treatment, and that institution no. LIU-15 had refused to admit him for treatment before his conviction. 40. On 18 October 2013 the applicant underwent a chest X-ray examination which indicated negative changes in his right lung. The volume of his left lung had decreased, its tissue was infiltrated and it contained a number of cavities. 41. Following the fresh conviction, on 21 October 2013 the applicant was admitted to institution no. LIU-15. He was examined by a doctor, who diagnosed him with hepatitis C and MBT positive infiltrative tuberculosis of the left lung at the stage of tissue destruction. The doctor ordered blood, urine, sputum culture and drug susceptibility tests and an electrocardiogram examination. The applicant was prescribed a long list of medicines, including capreomycin, isoniazid, ethambutol and hepatoprotectors. 42. A week later, after the results of the tests had been received, the applicant’s treatment was slightly modifed to include ofloxacin. 43. In the first half of November 2013 the applicant was examined on four occasions by doctors, who recommended continuing the prescribed treatment. 44. On 14 November the applicant’s electrocardiogram examination revealed that he had mitral insufficiency. 45. A medical record drawn up on 14 November 2013 by the applicant’s attending doctor indicated that the applicant had refused to take tuberculosis medicines on that date. The following entries in the applicant’s medical record dated 19, 21, 25, 27 and 29 November do not contain any similar information. The Government did not submit any other document (for instance, a regime violation record) showing that the applicant had refused to continue the treatment. 46. On 6 December 2013 a medical commission examined the applicant and established no significant changes in his condition. The most recent entry in the medical record, made on 16 December 2013, showed no significant development in his health. 47. No further information about the applicant’s treatment was provided after 16 December 2013. 48. The applicant was certified as having second-degree disability on 1 May 2014. 49. A medical panel examined the applicant on 15 August 2014 with the aim of determining whether his state of health warranted early release. The panel stated that the applicant was suffering from multi-drug resistant progressive tuberculosis aggravated by cavernosal fibrosis of the lungs and cardiopulmonary decompensation in the third stage. The applicant’s left lung was completely destroyed by the infection. The panel concluded that his state of health could warrant his release on parole. 50. On 11 October 2014 the applicant died from tuberculosis in institution no. LIU-15. 51. The documents from the case-file, including a court judgment, indicate that the applicant was not married. According to certificate no. 35/6/9-Ю-1ГР issued by institution no. LIU-15 on 20 October 2014, when being asked about his relatives, the applicant stated that he had a partner, Ms Yusupova. The authorities noted that statement in the applicant’s personal file and allowed Ms Yusupova to visit him in detention as his de facto wife. By a telegram on 11 October 2014 the authorities informed Ms Yusupova of the applicant’s death, addressing her as his wife. 52. According to Ms Yusupova’s submissions, which were not contested by the Government, she was in a close family-like relationship with the applicant from 2010 until his death in detention. She visited him on many occasions, sent him letters and parcels. In 2013 when the applicant was released from detention they lived together and ran a common household. 53. Ms Yusupova submitted that she had had intense and intimate correspondence with the applicant before his death. She provided the Court with two letters sent to her by the applicant in September 2013 to confirm that they had shared strong feelings for each other. 54. On 11 September 2013 the applicant formally authorised Ms Yusupova to withdraw money from his bank account. In his letter to the Court on 1 March 2014 the applicant expressly asked the Court to award her non-pecuniary damage if he died.