Постановление Европейского суда по правам человека от 01.04.2010 «Дело Ахметов (akhmetov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF AKHMETOV v. RUSSIA
(Application No. 37463/04)
JUDGMENT*
(Strasbourg, 1.IV.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Akhmetov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Andre}*Wampach, Deputy Section Registrar,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 11 March 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 37463/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Rafik Khamidullovich Akhmetov ("the applicant"), on 12 July 2004.

2. The applicant was represented by Mr R. Khashimov, a lawyer practising in Chelyabinsk. The Russian Government ("the Government") were represented by Ms V. Milinchuk, former Representative of the Russian Federation before the European Court of Human Rights.

3. The applicant alleged, in particular, that he did not receive adequate medical treatment in detention.

4. On 12 February 2007 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

5. On 26 March 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

6. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
7. The applicant was born in 1967 and lives in Chelyabinsk.

A. The applicant's sentence and detention
8. In 1996 the applicant was detained in connection with criminal proceedings instituted against him and placed in remand prison IZ-70/3 in the Chelyabinsk Region.

9. On 30 December 1998 the Chelyabinsk Regional Court found the applicant, who had previous convictions, guilty of a number of criminal offences, including banditry, kidnapping and unlawful use of weapons. He was sentenced to the death penalty and to confiscation of property.

10. Between 14 December 1999 and 26 April 2000 the applicant was held in remand prison IZ-77/2 in Moscow pending the examination of his appeal.

11. On 28 February 2000 the Supreme Court of the Russian Federation altered the sentence, commuting the death penalty to fifteen years' imprisonment, ten years of which to be served in a prison and five years in a correctional facility.

12. From 10 May 2000 until an unspecified date in 2006 the applicant was held in prison YaV-48/T-1, Chelyabinsk Region (учреждение ЯВ-48/Т-1 по Челябинской области).

13. On an unspecified date in 2006 the applicant was transferred to prison No. T-2 in the Vladimir Region.

14. On 29 February 2007 the Metallurgicheskiy District Court of Chelyabinsk reviewed the sentence. Under the revised sentence, the applicant was to serve the entire term of his imprisonment in a correctional facility.

B. The applicant's illness and the medical
treatment provided
15. Since 1993 the applicant has suffered from a cavernous haemangioma of the right parietotemporal area.

16. In 1995 the applicant underwent examination and carotid ligation in the Microvascular Surgery Centre at Chelyabinsk Regional Hospital No. 1.

17. Following the applicant's placement in remand prison IZ-70/3 in 1996, he was examined by the prison doctors in connection with his complaints concerning the growth of the tumour and occasional haemorrhages of the tumour and the right auricle. The doctors subsequently applied antiseptic dressings and haemostatic medicines.

18. During the applicant's detention in remand prison IZ-77/2, Moscow, from 14 December 1999 to 26 April 2000 he was regularly examined by the prison doctors.

19. On 10 May 2000, following the applicant's transfer to prison YaV-48/T-1, he was examined by the deputy head of the prison medical unit. He was diagnosed with cavernous haemangioma of the head and right auricle and aseptic dressings were applied regularly.

20. On 24 May and 20 August 2000 the applicant was placed in the surgical department of penitentiary hospital IK-3. There he was examined by a neurosurgeon and oncologist and diagnosed with a cavernous haemangioma of the right temporal and parotid area involving the right auricle.

21. On 19 November 2000 the applicant was placed in penitentiary hospital IK-3 for surgery. On 14 December 2000 he underwent ligation of the occipital artery and of branches of the carotid artery with a view to reducing the blood supply to the tumour. A short-term improvement was observed after the surgery: the tumour decreased in size and the sores epithelised. The applicant was discharged from hospital on 15 January 2001 in a satisfactory state.

22. On 11 June 2001 the applicant was against placed in the surgical department of penitentiary hospital IK-3 on account of a growth in the tumour. There he was examined by M., microsurgeon of the Microvascular Surgery Centre at Chelyabinsk Regional Hospital No. 1, who had operated on the applicant in 1995 and 2000, with a view to determining the prospects for radical surgery. M. stated that, taking into account the previous surgeries, excision of the haemangioma, ligation of the nutrient stem and subsequent plastic surgery for the injury to the skull was recommended. Angiography and magnetic resonance tomography were also recommended.

23. On 8 October 2001 the applicant underwent tomography in Chelyabinsk Regional Hospital No. 1, since it was not possible to carry this out in penitentiary hospital IK-3. According to the angiosurgeon, the results of the tomography were not conclusive and angiography with intracranial vascular opacification was required.

24. On 25 October 2001 prison YaV-48/T-1 requested the Ministry of Justice to grant permission for the applicant's transfer with a view to providing him with the medical aid required.

25. On 19 February 2002 the Ministry of Justice granted permission to transfer the applicant to detention facility US-20/12 in St Petersburg. On 21 February 2002 the relevant instruction was sent to prison YaV-48/T-1.

26. From 15 April to 8 May 2002 the applicant was placed in facility US-20/12 in St Petersburg, where he was examined by E., an otolaryngologist-oncologist. The applicant was diagnosed with haemangioma of the right temporal and parietal areas and recurrent arrosive haemorrhages from the right auricle, which were life-threatening. It was recommended that he undergo radical removal of the tumour, with simultaneous plastic surgery of the injury and embolization of the vessels, in an oncological centre specialising in head and neck tumours.

27. According to the doctors of facility US-20/12, such treatment was not possible within the penitentiary system. They stated that an examination should be carried out by the Special Medical Commission (SMK) with a view to deciding on the applicant's possible release in connection with his state of health.

28. Between 30 July and 10 October 2002 the applicant was placed in the surgical department of penitentiary hospital IK-3 in Chelyabinsk, where he underwent medical examinations prior to the meeting of the SMK. The relevant medical record, No. 2388/618, stated as follows:

"Diagnosis established by the referring medical institution: cirsoid haemangioma of the right parietotemporal area... 31 July 2002...

Diagnosis upon discharge [from the hospital]: cavernous haemangioma affecting the right parietotemporal area and the right auricle. 16 September 2002..."
29. On 22 August 2002 the applicant was examined by surgeon K., Doctor of Medicine, Head of the Centre for Plastic and Aesthetic Surgery Plastes. After examining the applicant, she stated as follows:

"Complaints concerning a tumour in the right parietotemporal area and the right auricle. According to the patient, the tumour appeared in 1993 and has been growing slowly. In 1995 he underwent surgery in the microsurgery department of Chelyabinsk Regional Clinical Hospital No. 1 (ЧОКБ № 1); the external carotid artery was ligated on the right side. In 1996, after trauma to the soft tissues of the head, he noted continued growth of the tumour. [The patient] was examined in 2001. He underwent computer tomography of the brain...

Conclusion: the patient has vascular malformation of the soft tissue of the right parietotemporal and parotid areas involving the right auricle (cavernous haemangioma). The illness does not fall within the category of cancerous tumours and is not of immediate danger to the patient's life. The non-abundant haemorrhages stop without assistance. [Surgery] is not possible in the surgery department of YaV-48/3 [hospital]. Radical ablation of the growth, with simultaneous plastic surgery to the soft tissues injury using an advanced flap, is possible only in specialised departments."
30. On 20 September 2002 the applicant was examined by the SMK, which concluded that, having regard to the list of illnesses that could serve as a basis for early release from serving one's sentence, the applicant was not entitled to such release. The report of the examination stated:

"Complaints: a tumour in the right temporal and parietal areas spreading to the right auricle.

Anamnesis:...The patient notes... that the haemangioma on the right side appeared in 1993. In 1995 [he] underwent surgery in OKB No. 1 [hospital] [ОКБ N 1], and the external carotid artery was ligated on the right side. After surgery the tumour diminished somewhat. Rapid growth of the tumour, ulceration of the upper segment of the auricle and frequent haemorrhages from that area in 1996. On 19 November 2000 [he was] placed in the surgery department of the YaV-48/3 hospital. Ligation of the cervical branch of the temporal artery on 14 December 2000 - insignificant effect... In agreement with the medical unit of [the penitentiary service] he was placed in institution US-20/12 (Ус 20/12) between 15 April and 8 May 2002 with the diagnosis: cavernous haemangioma of the right parietotemporal area, recurrent arrosive haemorrhages from the right auricle affected by the tumour, threatening the patient's life. Recommended: ablation of the tumour with simultaneous plastic surgery in an oncocentre by oncologist [E.]. Such treatment is not feasible in the penitentiary system's facilities....

Examination by Z., the senior external surgeon of the medical unit [of the Chelyabinsk Region penitentiary service]: taking into account the anamnesis, the tumour has been growing slowly over the past seven years. No changes in bone tissue, no possibility of taking material for histological study on account of the risk of haemorrhage and impossibility of stopping it in the given circumstances, no changes in lungs, brain; the tumour is benign. Diagnosis: vascular malformation of soft tissues of the right parietotemporal and parotid areas involving the right auricle. No threat to life...

Final diagnosis: vascular malformation of soft tissue of the right parietotemporal and parotid areas involving the right auricle."
31. On 21 October 2002, after the applicant's return to prison YaV-48/T-1, he was examined by a regional medical-social commission. The commission decided not to grant him the status of a disabled person.

32. It appears that between 2 and 28 January 2003 the applicant was again placed in a penitentiary hospital. Medical record No. 372/76 stated:

"...28 January 2003. Diagnosis upon discharge [from the hospital]:...vascular malformation of the parietal and temporal areas, of the right auricle."
33. On 2 February 2003 the applicant was examined by K, Head of the Department of Maxillofacial Surgery of Chelyabinsk Town Clinical Hospital No. 3. The report of the examination stated:

"Complaints about a tumour in the right temporal, parotid and cervical [areas] and the auricle. There is progressive tumour growth: the tumour currently measures 15 x 14 centimetres, protrudes from the surface of the skin and pierces it with a vascular figure. Auscultation creates noise in the parotid and temporal [areas]... In the auricle area there are zones of necrosis...

Diagnosis: vast haemangioma... of the right temporal, parotid and parietal areas and the auricle.

Surgery is not recommended because of the high risk to life. Sclerotherapy (SHF, X-ray therapy) is recommended..."
34. On 14 March 2003 the administration of prison YaV-48/T-1 requested the Ministry of Justice to assist with the applicant's treatment, since there were no facilities for X-ray therapy in the prison.

35. On 29 April 2003 the Ministry of Justice replied that the administration of prison YaV-48/T-1 should apply with a request for the applicant's transfer to penitentiary hospital OZh-118/5 in Voronezh. The prison authorities applied for such a transfer.

36. On 25 August 2003 hospital OZh-118/5 in Voronezh refused the request on the ground that it had no specialists qualified for the treatment of the applicant's condition. On the same date the prison authorities again requested the Ministry of Justice to assist with the applicant's treatment by SHF and X-ray therapy.

37. On 18 September 2003 the administration of prison YaV-48/T-1 received an order on the applicant's transfer to facility US-20/12 in St Petersburg. On 19 October 2003 the applicant left for the facility.

38. The applicant was placed in inter-regional penitentiary hospital IK-12 (MOB) from 24 November 2003 to 7 January 2004. He underwent a biopsy and was examined by a panel consisting of the head of the hospital, the deputy head of the medical department, the deputy head of the surgical department and the head of the otolaryngological department. The applicant was also examined by Sh., the head of the neurological department of Town Hospital No. 2, and E, an oncologist. According to the panel's report, treatment of the applicant's condition was not possible in hospital IK-12 (MOB).