THIRD SECTION

DECISION

Applications nos. 48053/15 and 37395/16 Natalya Gennadyevna SEMENOVA against Russia and Elmira Rifatovna IBATOVA against Russia

The European Court of Human Rights (Third Section), sitting on 8 June 2021 as a Committee composed of:

Darian Pavli, President, Dmitry Dedov, Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above applications lodged on 21 September 2015 and 16 June 2016 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

procedure

1 . The applicant in the first case, Ms Natalya Gennadyevna Semenova, is a Russian national, who was born in 1961 and lives in Nevskaya Dubrovka. She was represented before the Court by Mr Y.A. Krasnov, a lawyer practising in Tosno.

2 . The applicant in the second case, Ms Elmira Rifatovna Ibatova, is a Russian national, who was born in 1968 and lives in Kazan. She was represented before the Court by Ms R.F. Gayazova, a lawyer practising in Kazan.

3 . The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr A . Fedorov .

4 . The applicants complained, in particular, about their relatives ’ death resulting from allegedly inadequate medical assistance in detention.

THE FACTS

5 . The facts of the cases may be summarised as follows.

6 . According to the medical file the applicant ’ s son, Y., had been diagnosed with HIV for the first time in 2005-2006 (different dates are indicated in different entries). He had also been suffering from hepatitis C since 1994.

7 . On 21 August 2009, while in pre-trial detention facility, he was first diagnosed with HIV. On 8 September 2009, he was repeatedly diagnosed with HIV and given a written notice informing of the infection and of its consequences.

8 . Y. was given a lecture on the necessity of undergoing HIV treatment (January 2011) and advised about the consequences of the refusals. Despite that, he refused on multiple occasions to undergo HIV treatment (9 September 2009, January 2011), antiretroviral therapy (ART) (17 August 2011, January 2012, 14 June 2012) and CD4 count tests (23 November 2009, 20 February 2010). Every time when he also rejected to sign a written refusal, a relevant act was drawn up by the prison authorities. He agreed to have CD4 count tests on 15 August 2010, but they could not have been conducted due to the applicant ’ s subcutaneous veins not being accessible for taking samples.

9 . On 18 December 2009 Y. was convicted of a drug-related crime. On 9 April 2010 he arrived at IK ‑ 4 located in the Leningrad Region to serve his sentence.

10 . Between 24 and 31 May 2011 he was placed in the penitentiary medical unit (No. 4 MSCH-78 St Petersburg and Leningrad Region) of the same detention facility due to fever. On 31 May 2011 he was transferred to the penitentiary hospital (No. 1 MSCH-78 St Petersburg and Leningrad Region) with the diagnosis “progressive HIV (without ART). Fever of unknown origin. Tuberculosis is under question”. He underwent chest X-ray there. He was also examined by a neurologist on 21 June 2011 who diagnosed pain caused by HIV. Relevant treatment was prescribed. On 24 June 2011 he was prescribed anti- tuberculosis treatment.

11 . On 18 July 2011 the medical panel of Hospital No. 1 diagnosed progressive HIV 4B in absence of ART and infiltrative pulmonary tuberculosis. On 22 July 2011, while in satisfactory medical condition, he was transferred to medical detention facility LIU-4 in Karelia Republic. There he started to systematically undergo necessary treatment, but only after his condition worsened in March-April 2012.

12 . On 9 May 2012 he refused to undergo tuberculosis treatment, despite a warning of possible death. He also refused to sign a written refusal, so a relevant act was drawn up by the authorities.

13 . On 19 June 2012, following a recommendation of the medical panel, the prison authorities ruled that due to the health condition he should be released. Relevant documents had been prepared and sent to the competent authorities. The same day Y. refused to undergo necessary treatment despite being told of the possible lethal consequences of such decision. He confirmed his refusal on 27 June 2012.

14 . On 4 July 2012 he died in penitentiary hospital No. 2 in Karelia Republic. The post mortem report showed that his death had been caused by a number of inter-related health issues, notably HIV/AIDS accompanied by tuberculosis.

15 . Following the death of Y. an inquiry had been conducted, however, on 24 July 2012 the investigator decided not to initiate criminal proceedings since it could not have been established that the death resulted from unlawful actions or omissions of the detention facility staff members and (or) medical personnel.

16 . In 2014 the applicant filed a non-pecuniary damage claim before the domestic courts, which had been dismissed by the courts of all instances and most recently by the final decision of 27 August 2015 of the Supreme Court of the Russian Federation. These decisions established, essentially, that the detention facilities provided Y. with the necessary assistance, and that his death cannot be attributed to them as there had been no direct causal link.

17 . On 2 July 2002 the applicant ’ s husband, V., was convicted of murder by the Supreme Court of the Republic of Tatarstan and sentenced to 15 years ’ imprisonment.

18 . He served his sentence in various detention facilities of the Republic of Tatarstan: in IK-19 between 23 April 2003 and 8 October 2007, in IK-18 between 8 October 2007 and 9 April 2010, in IK-2 between 9 April 2010 and 15 August 2010, and in IK-8 between 15 August 2010 and 16 February 2014. He was examined by the doctors every time he arrived at the new detention facility, as well as on numerous occasions between the transfers.

19 . He was also placed on numerous occasions in the penitentiary medical unit (MSCH ‑ 16 of the Republic of Tatarstan) (between 6 June and 8 July 2013, 16 and 30 July 2008, 17 September and 8 October 2008, 15 October and 24 December 2008, 28 February 2011 and 5 June 2012, 8 and 26 January 2014).

20 . According to the medical case file, he had a head injury as the result of a gunshot in 1996 and he was suffering from HIV since 2007. He was diagnosed with HIV 3A at least since 23 September 2008 and HIV 4A at least since 2 February 2012.

21 . He constantly refused to undergo ART without presenting any reasons. Every time he was advised of the possible consequences of refusal. He signed written refusals, notably, on 4 July 2013, 21 and 24 January 2014.

22 . Between 8 and 26 January 2014, while in the penitentiary hospital (MSCH-16), he was diagnosed inter alia with HIV 4A progressing due to the lack of ART, chronic hepatitis C and chronic bronchitis.

23 . On 29 January 2014 he complained about headaches and overall poor health condition. He was examined by a doctor and relevant treatment was prescribed.

24 . On 3 February 2014 his medical state worsened and he was examined by a doctor from the Tatneft Medical Unit (Almetyevsk). The latter set a diagnosis ‘ consequences of the head injury ’ .

25 . At least since 10 February 2014, V. was in grave condition.

26 . On 14 February, while in coma, he was transferred to the Tatneft Medical Unit (Almetyevsk). After medical examination and a tomography he was diagnosed with toxoplasma encephalitis and a treatment in infectious diseases hospital was recommended. He was immediately transferred to the infectious diseases unit of the Almetyevsk Central District Hospital. As there had been no free spaces in the infectious unit, he was placed in the emergency unit. Doctors examined V. and prescribed a treatment that could be done in the detention facility. He was thus transferred back to IK-8 on the evening of the same day.

27 . On 16 February 2014 he died.

28 . According to the post-mortem examination report of 7 March 2014, the death resulted from cerebral lymphoma in conjunction with brainstem hernia.

29 . Following the death of the applicant ’ s husband, on 15 April 2014 a criminal inquiry into negligence was initiated. The applicant was recognised as the victim.

30 . The forensic examination was conducted within the preliminary criminal investigation. According to the report of 14 November 2014, the post mortem examination report was wrong and the death resulted from brainstem hernia that had been caused by HIV.

31 . Given the results of the forensic examination, on 5 December 2014 the investigator terminated the criminal inquiry due to the absence of the event of a crime. This decision had never been contested by the applicant.

32 . The applicant sought an independent forensic examination, which on 5 April 2015 concluded that her husband had allegedly died from toxoplasma encephalitis. They also stated that he had never been diagnosed with this disease during his lifetime.

33 . Taking into account the results of the above report, the applicant filed a non-pecuniary damage claim before the domestic courts. She attached to her claim the psychologist ’ s report of 8 October 2015, according to which the death of the husband caused her psychological trauma.

34 . Her lawsuit had been dismissed by the courts of all instances and most recently by the final decision of 22 April 2016 of the Supreme Court of the Russian Federation. The courts found that the detention facilities provided V. with the necessary assistance, and that his death cannot be attributed to them as there had been no direct causal link.

35 . The relevant provisions of domestic and international law on the general health care of detainees were previously set out in the case Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015) and the rules on refusing to have medical treatment in the case Karakhanyan v. Russia (no. 24421/11, § 33, 14 February 2017).

COMPLAINTS

36 . The applicants complained under Articles 2 and 3 of the Convention about their relatives ’ deaths resulting from poor medical care in detention. They also lodged an accessory complaint under Article 13 of the Convention.

THE LAW

37 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

38 . The applicants complained under Articles 2, 3 and 13 of the Convention that the authorities a) had failed to provide their relatives with adequate medical assistance while in detention, b) had thus been responsible for their relatives ’ suffering and deaths, and c) had failed to conduct adequate and effective investigations into these deaths.

39 . The Court considers that the above complaints fall to be most appropriately examined under Article 2 of the Convention.

40 . The Government submitted that in both cases the detainees died because of their own refusal to undergo the necessary HIV treatment, and thus, no responsibility for their deaths could be attributed to the State under Article 2 of the Convention. Further, in the first case Semenova v. Russia , no. 48053/15, the Government maintained that the applicant had no standing in respect of her late son ’ s death either as his heir or in her own name.

41 . The applicants contested these arguments.

42 . The Court notes that in certain Article 2 cases it had previously found that close relatives of a deceased person could pursue the proceedings either in the name of that person or in their own name (see, for example, Fabris and Parziale v. Italy , no. 41603/13, § 37, 19 March 2020; Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 111, ECHR 2009; Fairfield and Others v. the United Kingdom (dec.), no. 24790/04, ECHR 2005 ‑ VI). In the light of the circumstances of the case, the Court finds that Ms Semenova has a proper standing, and that the Government ’ s above objection should be dismissed.

43 . It is the established case-law of the Court that for the medical assistance to be adequate the authorities must ensure, inter alia , that a detainee is seen by a doctor and prescribed a certain form of treatment, that a comprehensive record of state of health and treatment while in detention is kept, that diagnosis and care are prompt and accurate and that, where necessitated by the nature of a medical condition, supervision is regular and systematic (see, among other authorities, Blokhin v. Russia [GC], no. 47152/06, §§ 137-38, 23 March 2016 with further references).

44 . The Court observes that, unlike in Aleksanyan v. Russia (no. 46468/06, § 144 and onwards, 22 December 2008), the applicants ’ relatives had effective access to anti-retroviral treatment. However, according to the available evidence, they voluntarily refused ART and tests. They were both duly notified of their disease and of the possible negative consequences of their refusals to follow the recommended treatment (see paragraphs 8 and 21 above). Unlike in the case of Karakhanyan v. Russia ( cited above , § 47,), the Court is satisfied that in this case the doctors have sufficiently explained to the patients the ensuing risks for their health and life.

45 . The Court notes that the freedom to accept or refuse specific medical treatment is vital to the principles of self-determination and personal autonomy (see Jehovah ’ s Witnesses of Moscow v. Russia , no. 302/02, § 136, 10 June 2010). The refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with the rights protected under Article 8 § 1 of the Convention (see Pretty v. the United Kingdom , no. 2346/02, § 63, ECHR 2002‑III). Therefore Article 2 obliges the national authorities to make sure that the decision has been taken freely and with full understanding of what is involved (see Haas v. Switzerland , no. 31322/07, § 54, ECHR 2011), given the patient ’ s decision-making capacity (see Arskaya v. Ukraine , no. 45076/05, § 69, 5 December 2013).

46 . The Court also observes that, unlike in the case of Ivko v. Russia ( cited above , § 107), the documents presented by the parties in the case at hand confirm that, having encountered the applicants ’ relatives refusal, the authorities provided further supervision and support to assist them in completing the full course of treatment. Besides, both Y. and V. refused to take drugs not on some occasions, but constantly and systematically, and their consents were rare and exceptional.

47 . The Court further observes that the applicants have not submitted any evidence that complaints have been made either to the administrative authorities or the courts about allegedly inadequate medical assistance, dating back to the time when their relatives had been in detention.

48 . The Court also takes note of the transfers of the second applicant ’ s husband with different diagnosis in the days immediately before his death (see paragraphs 24 - 26 above). However, it does not, in any event, consider that in the circumstances of the present case these transfers were an indication that the applicant ’ s husband was deprived of life-saving treatment without sufficient grounds. As established by the investigation and the domestic courts, he had died of HIV aggravated with several other serious diseases. His condition needs to be seen in the context of his constant refusal to undergo relevant HIV treatment. It appears, in the circumstances, that the authorities did everything reasonably possible, in good faith and in a timely manner, to try to avert the fatal outcome of this case.

49 . The Court further notes that the medical personnel took sufficient measures to inform the applicants ’ late relatives about the possible consequences of their refusals. They were mentally competent and able to take decisions freely and with full understanding. It appears that they have clearly understood the need for ART treatment and that they risked lethal consequences by refusing it. The Court therefore considers that they have not cooperated sufficiently and have not been receptive to the proposed treatment (see, mutatis mutandis , Rooman v. Belgium [GC], no. 18052/11, § 165, 31 January 2019). Thus, the authorities cannot be said to have failed to provide necessary medical assistance.

50 . The Court next reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to ‘ secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention ’ requires by implication that there should be some form of effective official investigation (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 171, 14 April 2015), including in circumstances of the alleged medical negligence (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 214, 19 December 2017; Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009).

51 . Turning to the circumstances of the present cases, the Court notes that the authorities conducted inquiry with due diligence, ascertained the causes of deaths of the applicants ’ family members with reference to the results of the expert assessments. The decisions not to initiate criminal proceedings were well-reasoned (see paragraphs 15 and 29 - 31 above), and not contested by the applicants. In particular, after having questioned the treating doctors and heads of the respective medical units, the investigators found that the applicants ’ relatives had been provided with the qualified treatment and that they had died because of HIV, which had progressed in situation of their constant refusals to undergo ART. These complaints were further examined by the domestic courts within civil proceedings (see paragraphs 16 and 34 above). The courts established that the post-mortem examinations had been conducted properly. They found no causal link between the doctors ’ actions and the death of the patients, thus supporting the findings of the investigation. The applicants did not seek additional forensic examinations in the course of civil proceedings.

52 . Therefore, there are no grounds to conclude that the procedural obligation under Article 2 had not been fulfilled.

53 . Having regard to all of the above-mentioned considerations, the Court concludes that the complaints under Article 2 of the Convention are manifestly ill-founded, and thus must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

54 . The applicants also lodged an accessory complaint under Article 13 of the Convention. The Court having regard to the above finding under Article 2 of the Convention considers that this complaint, too, is manifestly ill-founded, and thus must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 1 July 2021 .

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Olga Chernishova Darian Pavli Deputy Registrar President