CEDH · CASELAW;CLIN;ENG — 22 décembre 2008

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Russia - 46468/06 Judgment 22.12.2008 [Section I] Article 3 Degrading treatment Inhuman treatment Lack of medical assistance to an HIV-positive detainee and State's failure to comply with Rule   39 measures in connection therewith: violation Article 34 Hinder the exercise of the right of application Lack of medical assistance to an HIV-positive detainee and State's failure to comply with Rule   39 measures in connection therewith: failure to comply with obligations under Article 34 Article 46 Article 46-2 Execution of judgment Respondent State required to discontinue the applicant's detention on remand. Facts : In 2003-2004 the tax authorities sued the Yukos oil company for unpaid corporate taxes. At the same time criminal proceedings were instituted against several of the company's leading executives on charges of large-scale fraud and embezzlement. The applicant provided legal services to the company and its senior executives Mr   Khodorkovskiy and Mr Lebedev. He was subsequently appointed vice-president of Yukos. Shortly afterwards, he was allegedly questioned by an investigator from the General Prosecutor's Office who warned him to “stay far away” from the company's affairs unless he was volunteering “to go to prison”. In April 2006 criminal proceedings were initiated against the applicant, his premises were searched and he was taken into custody. On several occasions he applied for release, citing poor health, but his requests were refused. In September 2006 he was found to be HIV-positive. By September 2007 he was suffering from a swinging fever, had lost over 10% of his body weight and had become anaemic. His eyesight, which was poor at the time of his arrest, worsened to the extent that he was effectively blind. He developed a number of other diseases: inter alia , stomatitis, neurological problems, encephalopathy, liver lesions and lymph cancer. A medical examination had revealed a dramatic worsening of his condition. It was recommended that he should undergo in-patient examination and treatment in the Moscow Aids Centre. The investigator in charge of the case lodged a request with a court stating that the applicant's diseases could not be treated in a detention centre and seeking his release on bail. The court decided that it was not competent to deal with the matter and noted that the investigator did not need a court order to replace detention on remand with a milder measure of restraint such as bail. However, after receiving that decision, the investigator refused to allow release on bail, concluding that he was incompetent to decide whether the applicant should be transferred to a specialised medical institution. The applicant's detention was repeatedly extended, most recently until January 2009. The prison hospital attested that he was fit for detention and could participate in criminal proceedings. On 27 November 2007 the Court indicated an interim measure under Rule 39 of the Rules of Court, inviting the Government to secure immediately the applicant's in-patient treatment in a hospital specialised in the treatment of Aids and concomitant diseases and to submit a copy of his medical file. On 4   December 2007 the Government informed the Court that the interim measure had not yet been implemented since “it required additional time”. On 21 December 2007 the Court indicated to the Government an additional interim measure while confirming the validity of the previous one (the applicant's transfer to a specialised institution): the Government were invited inter alia to form a medical commission to be composed on a parity basis to diagnose the applicant's health problems and suggest treatment. On 27 December 2007 the Government replied that the applicant could have received adequate medical treatment in the medical facility at the detention centre and that his examination by a mixed medical commission was against Russian law. However, they did not refer to any specific law in this respect. In February 2008 the trial in the applicant's case was suspended due to his poor health. He was placed in an external haematological hospital where he was guarded round-the-clock by policemen; the windows of his room were covered with an iron grill. He was still there when the Court adopted its judgment. Law : Article 3 – The applicant had not disputed that while in the remand prison he had received certain forms of basic medical assistance. The central issue was, however, the treatment the applicant had received after he was found to be HIV-positive, including whether he had had access to anti-retroviral drugs and whether he should have been transferred to a specialist hospital. Deterioration of the applicant's eyesight : The Court was unable to conclude that the deterioration of the applicant's eyesight was imputable to the authorities, or that his poor eyesight as such was incompatible with his detention from the standpoint of Article 3 of the Convention. Access to anti-retroviral drugs : According to the applicant's medical file and official reports produced by the Government, on several occasions the applicant had refused “an examination”, “injections”, and “treatment”. However, those documents had not specified what kind of treatment had been offered to the applicant and what examinations he had been supposed to undergo. If the applicant's medical file was not specific enough in these respects, the Court could make inferences. In all probability, the applicant had not received the anti-retroviral treatment from the prison pharmacy. Given that the Contracting States were bound to provide all medical care that their resources might permit, the Court did not consider that the authorities had been under an unqualified obligation to administer to the applicant the anti-retroviral treatment, which was very expensive, free of charge. In fact, the applicant could receive necessary medication from his relatives and had not alleged that procuring those medicines had imposed an excessive financial burden on him or his relatives. The Court was therefore prepared to accept that the absence of such drugs in the prison pharmacy had not been, as such, contrary to Article   3 of the Convention. Access to specialised medical assistance : The Government's refusal to authorise the applicant's examination by a mixed medical commission including the doctors of his choice had been arbitrary. The Court therefore drew adverse inferences from the State's refusal to implement the interim measure indicated under Rule 39 of the Rules of Court. As from the end of October 2007 at the latest the applicant's medical condition had required his transfer to a hospital specialised in the treatment of AIDS. There was no information that the anti-retroviral therapy had ever been administered within the prison hospital, and that the medical staff working there had the necessary experience and practical skills for administering it. The prison hospital had therefore not been an appropriate institution for these purposes. The Court did not detect any serious practical obstacles for the immediate transfer of the applicant to a specialised medical institution. Thus, the Moscow AIDS Centre was located in the same city and had been prepared to accept the applicant for in-patient treatment. The applicant had been able to assume most of the expenses related to the treatment. The security risks he might have presented at that time, if any, had been negligible compared to the health risks he had faced. In any event, the security arrangements made by the prison authorities in an external hospital had not been very complicated. The national authorities had therefore failed to take sufficient care of the applicant's health at least until his transfer to an external hospital. This had undermined his dignity and entailed particularly acute hardship, causing suffering beyond that inevitably associated with a prison sentence and the illnesses he suffered from, which had amounted to inhuman and degrading treatment. Conclusion : violation (unanimously). Article 34 – The Court had indicated to the Government two interim measures under Rule 39. The first – the applicant's transfer to a specialist medical institution – had been indicated in November 2007, and then confirmed in December 2007 and January 2008. However, it was not until February 2008 that the applicant had been transferred to an external hospital. Even assuming that this hospital could be considered a “specialist institution”, it was clear that for over two months the Government had continuously refused to implement the interim measure indicated by the Court, thus putting the applicant's health and even life in danger. In the circumstances, especially given that this measure appeared to be relatively easy to implement, its prolonged non-implementation had been fully attributable to the authorities' reluctance to cooperate with the Court. In respect of the second measure, the Russian authorities had not permitted the applicant's examination by a mixed medical commission including doctors of his choice. The Court had already found the Government's justification of their refusal unsatisfactory. Bearing in mind that the applicant was seriously ill and in detention and so unable to collect all necessary information himself, such a position on the part of the authorities had amounted, in the circumstances, to an attempt to hinder him in pursuing his application under Article   34 of the Convention. In sum, by failing to comply with the interim measures indicated under Rule   39 of the Rules of Court, the Russian Government had failed to honour its commitments under Article   34 of the Convention. Conclusion : violation (unanimously). The Court also found violations of Articles 5 § 3 and 8 of the Convention. For more information, see Press Release no. 934. Articles 41 and 46 – Having regard to its findings of violations of the Convention, and especially in view of the gravity of the applicant's illnesses, the Court considered that the applicant's continued detention was unacceptable. It accordingly concluded that, in order to discharge its legal obligation under Article 46 of the Convention, the Russian Government was under an obligation to replace detention on remand with other, reasonable and less stringent, measures of restraint, or with a combination of such measures, provided by Russian law. (See also Khodorkovskiy v. Russia (N o 5829/04) in Information Note no. 85 and Paladi v. Moldova (N o   39806/05) in Information Note no. 99; the latter has been referred to the Grand Chamber).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes