A.B. v. RUSSIA

The applicant was a Russian national who was detained in a remand prison starting in May 2004 due to criminal charges of attempted swindling. His detention  had been prolonged a number of times upon prosecution’s request and he hadn’t been released on grounds that the offense was serious and he could abscond, engage in further criminal acts and interfere with the prosecution. The district court refused to accept the arguments by the applicant’s counsel request based on the applicant’s state of health as well as his personality stating that there hadn’t been medical evidence presented to show that his health would be damaged if remained detained. On 10 October 2006, the applicant was sentenced to five years and two months’ imprisonment.

In his compliant to the European Court of Human Rights (the ECHR), the applicant stated that he had Hepatitis C since 1997 and had been diagnosed with HIV when he got in to prison in 2004. He had shown symptoms of immunodeficiency for which he had requested booster and advised to take (aspirin, papaverine and analgesics). He was threatened to be confined in a solitary cell when he claimed these medications wouldn’t treat his condition. He was detained in solitary cells for months without breaking prison rules warranting the detention or requesting to be placed there. The conditions in the cells further deteriorated his health due to lack of necessary heating, special diet, and also antiviral medication resulting from lack of funding for medicines for HIV positive prisoners. His requests for being hospitalized both at the remand prison and at the Federal Penitentiary Service had been refused due to lack of space (that there had been too many HIV positive patients at the remand prison), and the fact that he wasn’t convicted and thus wasn’t eligible for treatment at the latter. Although he had lodged several complaints as regards his lacking medical treatment, no formal response had been given to him except for private conversations. Prison officials also failed to provide his counsel with his medical documents. The applicant in general complained of the conditions of his detention and that his solitary confinement made him to be socially isolated. The state acted in violation of Articles 3, 5 and 6(3)(b)&(c) of the European Convention on Human Rights (the Convention). 

The government argued that the applicant had been provided with appropriate medical examination and treatment by different specialists including an infectious disease specialist and regular check-ups were provided to him by general practitioners. “According to a certificate issued by the authorities of the remand prison on 19 April 2007, the applicant’s state of health had not deteriorated since 21 May 2004, he had not lost any weight and his lymph glands had not been dilated”. [Para. 56] The conditions of the applicant’s detention hadn’t been problematic in any of the cells and he hadn’t complained of the detention conditions to prison officials or the prosecution office.

The applicant’s prison inmates stated that they have overheard the applicant’s complaints of medical assistance, that the food served in prison was of poor quality, they were problems in relation to temperature, hot water and furniture, and that visits by health professionals was rare.

The ECHR noted that the applicant had been detained in a solitary confinement for 3 years for protecting his life from risk. It also noted that solitary confinement was the most restrictive measure which would be imposed by taking in to consideration the circumstances of the prisoner and the offense involved. The ECHR noted that the government hadn't provided grounds justifying the prolonged solitary confinement of the applicant. The alleged risk also hadn't been medically assessed. The ECHR noted that the government hadn't shown the availability to the applicant, under domestic law, of an independent judicial review for a prolonged solitary confinement. The ECHR held that the act of the state amounted to inhuman and degrading treatment, a violation of Article 3 of the Convention.

The ECHR noted that the applicant had been diagnosed with HIV with WHO clinical stage 2 disease in June 2004 and that he hadn't gone a CD4 count after such time, in the absence of which the need for antiviral treatment couldn't be determined. The applicant's health hadn't been monitored for six years. The ECHR thus found a violation of Article 3 of the Convention because "the applicant was not provided with the minimum scope of medical supervision for the timely treatment of his HIV infection while in detention and thus did not receive adequate medical assistance for his condition, a situation amounting to inhuman and degrading treatment". [Para. 134]

The ECHR held that the justifications of the district court extending the applicant's detention from 5 and 8 April 2005 were imprecise and the applicant's liberty was deprived with in this time, in violation of Article 5 (1) of the Convention. The ECHR found no violations of Article 6 of the Convention. The ECHR awarded non-pecuniary damage to the applicant.

"....the Court further reiterates that, although Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds save in exceptional cases (see Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.), no. 48799/99, 5 April 2001), the lack of appropriate medical treatment in prison may in itself raise an issue under Article 3, even if the applicant's state of health does not require his immediate release. The State must ensure that given the practical demands of imprisonment, the health and well-being of a detainee are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła, cited above, §§ 93-94)". [Para. 127]

" In order to establish whether the applicant received the requisite medical assistance while in detention, it is crucial to determine whether the State authorities provided him with the minimum scope of medical supervision for the timely diagnosis and treatment of his illness (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006, and Mechenkov v. Russia, no. 35421/05, § 102, 7 February 2008)". [Para. 128]

"The Court is gravely concerned by the Government's submission that the clinical data did not suggest that antiretroviral treatment should be administered to the applicant (see paragraph 117 above), when no requisite diagnostic measures had been taken to carry out a CD4 count, which is a primary source for the data in question. Such failure to monitor the applicant's state of health for more than six years is regrettable". [Para. 133]