I correctly predicted that there was a violation of human rights in IBRAGIMOV v. RUSSIA.

Judgment

THIRD SECTION

CASE OF IBRAGIMOV v. RUSSIA

(Application no. 26586/08)

JUDGMENT

STRASBOURG

28 November 2017

This judgment is final but it may be subject to editorial revision. In the case of Ibragimov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helen Keller, President,Pere Pastor Vilanova,Alena Poláčková, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 7 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 26586/08) 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 Mamat Minkailovich Ibragimov (“the applicant”), on 23 May 2008. 2. The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that post, Mr M. Galperin. 3. The applicant alleged that his son had died in detention owing to a lack of adequate medical assistance and that there had been no effective investigation of his death. 4. On 13 January 2012 the above complaints were communicated to the Government. 5. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1953 and lives in Katyr-Yurt, the Chechen Republic. He is the father of Mr R., who died of tuberculosis in a prison hospital. A. Medical treatment provided to Mr R. in detention
7. In 2004 Mr R. arrived at correctional colony no. 4 in the Arkhangelsk Region where he was to serve his twelve-year sentence. On admission to that facility, he underwent a general medical check-up permed by a prison doctor who concluded that he was healthy. Two routine chest X-ray examinations in March and October 2004 confirmed that conclusion. 8. On 10 March 2005 Mr R. complained to the prison medical authorities of fatigue and a cough. Acute rhinopharyngitis was diagnosed and a standard treatment for that condition was prescribed, but the symptoms persisted. Eleven days later, the prison doctor diagnosed acute pneumonia of the left lung. Mr R. was admitted to the prison medical unit and prescribed medication and a special dietary regime. 9. On 6 April 2005, in view of the absence of any positive changes in Mr R.’s health, he was moved to a prison tuberculosis hospital. A chest X‐ray examination performed on the day of his admission showed a massive infiltration in the lungs. 10. The next day Mr R. underwent a sputum test, which revealed his affliction with tuberculosis combined with pneumonia. Treatment with five first-line drugs was prescribed. It was started about two weeks later, but had no effect on Mr R.’s health. 11. On 12 April 2005 a drug susceptibility test was performed. The test result was only received on 18 July 2005 (see paragraph 15 below). An additional chest X-ray examination on 18 April 2005 indicated further progress of the diseases. 12. In the light of the above, on 23 April 2005 Mr R. was transferred to the Arkhangelsk regional prison tuberculosis hospital (“regional prison hospital”), where his treatment continued as previously prescribed. 13. According to the applicant, Mr R. was unsatisfied with the quality of his treatment. In early May 2005 both the applicant and Mr R. unsuccessfully sought the latter’s transfer to a medical facility located in a southern region, where Mr R. could have been provided with adequate treatment in a more suitable climate. 14. In the meantime, regular chest X-ray examinations showed that Mr R.’s health was continuing to deteriorate. By mid-July 2005 pulmonary cavities had appeared, and his condition had become serious. 15. On 18 July 2005 the regional prison hospital received the result of the drug susceptibility test of 12 April 2005. It revealed that Mr R.’s tuberculosis was resistant to four antibiotics being used in his treatment. 16. According to a medical entry made at the top of a page outside the related fields in Mr R.’s medical file, on 28 July 2005 he was prescribed treatment with advanced antibiotics. There are no regular entries showing the actual intake of the new drugs. 17. In August 2005 Mr R.’s condition was assessed as “of medium gravity”, but on 10 September 2005 he died. According to an autopsy report drawn up two days later, the cause of death was cardio-respiratory insufficiency provoked by tuberculosis. B. Inquiry into Mr R.’s death
18. In September 2006 the applicant asked for criminal proceedings to be instituted into the circumstances leading to his son’s death. He alleged that the authorities responsible for protecting the life and well‐being of his son had failed to comply with their obligations. 19. On 21 October 2006 the Primorskiy Inter-District Prosecutor’s Office refused to open a criminal case. Its page-long decision was based on the autopsy report and general information on Mr R.’s treatment submitted by the prison medical authorities. The investigator concluded that Mr R. had died of tuberculosis for which he had received medical treatment, and that the patient’s detention in a northern region had not breached Russian law. 20. In November 2006 the applicant repeated his request, having argued that the custodial authorities bore responsibility for his son’s death because they had failed to protect him from tuberculosis and to ensure prompt diagnosis of the disease. 21. By a letter of 9 January 2007 a prosecutor informed the applicant that a criminal inquiry had established that his son had contracted tuberculosis in early March 2005. The correctional colony had promptly identified the disease and had ensured treatment keeping the disease under control. The investigating authorities did not assess the quality of the medical services provided between late April and September 2005. 22. The applicant appealed against the decision of 21 October 2006, insisting that the investigator’s finding had not been supported by expert evidence. He further argued that the detention authorities had failed not only to diagnose his son’s tuberculosis promptly, but also to provide him with adequate care in the regional prison hospital. 23. On 3 July 2007 the Isakogorskiy District Court of Arkhangelsk examined the claim. Ms B., the head of the regional prison hospital’s unit responsible for Mr R.’s treatment, was heard. She stated that Mr R. had been admitted to the hospital on 23 April 2005. Shortly thereafter he had undergone medical testing. Ms B. stressed that the testing had been complex and that the hospital had only received the test result in August 2005. On 26 August 2005 the doctors had learned that Mr R.’s tuberculosis had been drug resistant. They had prescribed treatment with advanced antibiotics. However, by that time pathological changes in the patient’s body had already become irreversible. 24. Having regard to the investigation file, the court noted that the investigating authorities had solicited neither the autopsy report nor medical documents concerning Mr R.’s treatment and that they had not interviewed any doctor involved in the treatment. The court thus concluded that the criminal inquiry had not been thorough. It overruled the prosecutor’s decision of 21 October 2006 not to open a criminal case. 25. On 14 August 2007 the Arkhangelsk Regional Court quashed the District Court’s decision on appeal. It noted that it was not for the investigative authorities to assess all possible versions of the events and that there was no obligation on them to resolve each inconsistency in the case. The court found that the documents obtained by the first‐instance court and the statement by Ms B. had remedied the alleged shortcomings in the investigation. The case was remitted to the District Court for a fresh examination. 26. Ten days later the District Court re-examined the case. It concluded that the criminal inquiry had been carried out in compliance with the requirements of the Russian Code of Criminal Procedure, and that the impugned decision of 21 October 2006 had been based on sufficient evidence duly assessed by the investigating authorities. The applicant’s claim was accordingly rejected. 27. On 23 November 2007 the Regional Court upheld the above‐mentioned decision on appeal. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS
28. The relevant provisions of domestic and international law on the general health care of detainees are set out in the following judgments: Vasyukov v. Russia (no. 2974/05, §§ 41-50, 5 April 2011), and Khudobin v. Russia (no. 59696/00, § 56, ECHR 2006‐XII (extracts)). 29. According to International Standards for Tuberculosis Care published in January 2006, an assessment of the likelihood of drug resistance, based on the history of prior treatment, exposure to a possible source case with drug-resistant organisms, and the prevalence of drug resistance in the community, should be obtained for all patients. Patients who do not respond to treatment and chronic cases should always be assessed for possible drug resistance. For patients in whom drug resistance is considered to be likely, culture and drug susceptibility testing should be performed promptly (Standard 14). Persons who are in close contact with confirmed multiple drug-resistant tuberculosis patients also are at high risk of being infected with multidrug-resistant strains. In some closed settings, prisoners, persons staying in shelters for the homeless and certain categories of immigrants and migrants are at increased risk of multidrug-resistant tuberculosis. Patients with tuberculosis caused by drug-resistant organisms should be treated with special dietary regimes containing second-line anti‐tuberculosis drugs. At least four drugs to which the organisms are known or presumed to be susceptible should be used (Standard 15). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
30. The applicant complained under Articles 2 and 13 of the Convention that the authorities had failed to provide his son with adequate medical care in detention and that they had thus been responsible for his suffering and death. He also complained that the investigation into his son’s death had been ineffective. 31. The Court considers that the above complaints fall to be examined under Article 2 of the Convention, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law. ...”
A. Submissions by the parties
32. The Government submitted that Mr R.’s medical condition had been diagnosed in a timely fashion; that his tuberculosis treatment had started fifteen days after the diagnosis; and that his treatment had fully satisfied the requirements of the domestic standards. The medical facilities responsible for his treatment had been fully staffed and equipped. The Government further submitted that the investigation into Mr R.’s death had met the requirements of Articles 2 of the Convention. 33. The applicant argued that the doctors should have diagnosed his son’s disease earlier; that they had failed to amend his treatment when it had proved ineffective; and that his son’s treatment with effective medication had not started until 26 August 2005, two weeks before his death. He cited Ms B. (see paragraph 23 above) and questioned the credibility of the medical record dated 28 July 2005 (see paragraph 16 above). The applicant was unsatisfied with the thoroughness of the investigation, as a criminal case had not been opened. B. The Court’s assessment
1. Admissibility
34. The Court notes that the applicant’s complaints are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits
(a) The State’s compliance with its obligation to protect life
(i) General principles
35. The applicable general principles were set out in the cases of Karsakova v. Russia (no. 1157/10, §§ 46-49, 27 November 2014); Geppa v. Russia (no. 8532/06, §§ 68‐72, 3 February 2011); and Slimani v. France, (no. 57671/00, §§ 27‐32, ECHR 2004‐IX (extracts)). (ii) Application of the general principles to the present case
36. Turning to the circumstances of the present case, the Court observes that the applicant’s son developed tuberculosis and died in detention under the authorities’ control. In order to establish whether or not the respondent State complied with its obligation to protect life under Article 2 of the Convention, the Court must examine whether the domestic authorities did everything reasonably possible, in good faith and in a timely manner, to try to avert the fatal outcome of this case (see Karpylenko v. Ukraine, no. 15509/12, § 81, 11 February 2016). 37. The Court notes that on 7 April 2005 Mr R. was diagnosed with tuberculosis. Five days later a drug susceptibility test was performed. Without waiting for the test results, the medical authorities commenced treatment with first-line medication. The treatment had no positive effect. For the following three months until receipt of the test result on 18 July 2005, no adjustment of the treatment strategy was considered, despite a sharp deterioration in Mr R.’s health. There was no prompt reaction even when the doctor treating Mr R. learned of the drug resistance of the tuberculosis bacteria. Despite the patient’s serious condition, it took another ten days to adjust his treatment. Regard being had to the statement by Ms B. (see paragraph 23 above), the very unusual manner in which an entry to the medical record was made on 28 July 2005 (see paragraph 16 above) and the absence of any information about the actual intake of the new drugs, despite the legal requirement to record, in a detailed schedule, each intake of antibacterial drugs, the Court is doubtful whether the treatment with advanced antibiotics started at all. 38. However, even without determining whether the new drug regimen was eventually started, the Court finds that Mr R.’s treatment was palpably defective, primarily because no effective medication was given to him for almost four months after tuberculosis had been diagnosed. 39. Such a lengthy delay, aggravated by the swift progress of the disease, could not be justified by the late receipt of the drug susceptibility test result, which should and could have been obtained within several days of being carried out. The Court notes that there was nothing to prevent the regional prison hospital from ordering a new test, instead of waiting for the result of the old one, especially taking into account the Government’s assertion that the hospital had been fully staffed and equipped for tuberculosis treatment. Even assuming that the authorities were unable to promptly obtain the test result, they could have considered a change in the drug regimen, regard being had to its absolute ineffectiveness and the further rapid deterioration of Mr R.’s condition, a sign that the treatment was not working. Lastly, to identify the type of tuberculosis affecting Mr R., the authorities could have attempted to find a source case among Mr R.’s inmates. However, none of the aforementioned opportunities was used. Instead, the authorities continued administering the ineffective treatment. 40. In the light of the above, the Court concludes that the applicant’s son was deprived of effective medication for a prolonged period of time. It cannot exclude the possibility that the absence of such treatment resulted in irreversible changes in his condition, leading to his death. 41. In those circumstances, the Court concludes that the authorities failed to comply with their positive obligations under Article 2 of the Convention to protect Mr R.’s life. (b) The State’s compliance with its obligation to ensure an effective investigation
(i) General principles
42. The applicable general principles were set out in the cases of Karpylenko (cited above, § 96) and Geppa (cited above, § 86). (ii) Application of the general principles to the present case
43. The Court has held that where a person dies in custody in circumstances potentially engaging the responsibility of the State, even where the apparent cause of death is a medical condition, Article 2 of the Convention entails a duty on the part of the State to ensure an adequate investigative response (see Karakhanyan v. Russia, no. 24421/11, § 42, 14 February 2017; Karpylenko, cited above, § 96; and Karsakova, cited above, § 54). In the present case the Court finds that Mr R.’s death in custody and his father’s allegation of inappropriate medical treatment triggered the State’s duty to ensure that there was an effective and thorough investigation, as required by Article 2 of the Convention. It reiterates that the requirement of thoroughness means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‐founded conclusions to close their investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 325, ECHR 2014 (extracts)). 44. Coming back to the present case, the Court notes that in September 2006 the applicant requested that a criminal case into his son’s death be opened (see paragraph 18 above). The following month, having obtained general information from the medical authorities about Mr R.’s treatment and the cause of his death, the investigating authorities dismissed the applicant’s request. Although the District Court had identified serious shortcomings in the criminal inquiry (see paragraph 24 above), its decision was quashed by the higher court (see paragraph 25 above). Following re‐examination of the case the domestic courts upheld the investigative authorities’ decision, considering it to be lawful and well-founded (see paragraphs 26 and 27 above). 45. The Court cannot subscribe to that conclusion. It notes that despite the applicant’s allegations of medical negligence, the investigating authorities failed to obtain a copy of his son’s medical file. They did not question the doctors involved in the treatment, or carry out a credible assessment of the quality of medical treatment afforded to Mr R. The investigating authorities did not make a genuine attempt to find out whether it had been possible to diagnose tuberculosis earlier, to perform the drug‐susceptibility test and obtain the result in a timely fashion, and to adjust the treatment strategy as soon as its ineffectiveness had become evident. 46. Having regard to the above considerations, the Court concludes that the authorities failed to carry out a thorough investigation into the circumstances of the death of the applicant’s son. There has therefore been a violation of Article 2 of the Convention under its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
47. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
48. The applicant claimed 200,000 euros (EUR) in respect of non‐pecuniary damage. 49. The Government considered the claim to be excessive and that the finding of a violation would in itself constitute sufficient just satisfaction. 50. The Court, making its assessment on an equitable basis, considers it reasonable to award the applicant EUR 24,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses
51. The applicant also claimed EUR 6,248 for costs and expenses, to be paid into the bank account of his representative, of which EUR 6,008 were for legal costs incurred before the domestic courts and the Court, EUR 200 for translation costs, and EUR 40 for clerical costs. The applicant submitted a contract with his lawyer, and an invoice for the translation costs. 52. The Government argued that the applicant had failed to prove that the legal costs had been incurred in the proceedings before the Court. They stated that the Court should not award legal costs related to the domestic proceedings. 53. Regard being had to the documents in its possession and to its case‐law, the Court considers it reasonable to award the sum of EUR 3,500 covering costs under all heads. The award is to be paid into the bank account of the applicant’s lawyer, Mr D. Itslayev. C. Default interest
54. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to protect Mr R.’s right to life;

3. Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to ensure that a thorough investigation was carried out into the circumstances of Mr R.’s death;

4. Holds
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 24,000 (twenty-four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be paid to the applicant;
(ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s representative, Mr D. Itslayev;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident