Information Note on the Court’s case-law 191

December 2015

Ivko v. Russia - 30575/08

Judgment 15.12.2015 [Section III]

Article 34

Victim

Partner of deceased detainee who had allegedly been denied adequate medical care: victim status upheld

Article 3

Degrading treatment

Inhuman treatment

Prolonged failure to provide adequate medical care to seriously ill detainee: violation

Facts – The appli cant, who was suffering from hepatitis C and tuberculosis, was detained from October 2007 to May 2013 in relation to a drug-trafficking offence. After his release, he spent two months in a civilian hospital receiving treatment for his tuberculosis, before being rearrested in July 2013 on further drug-trafficking charges. He died in detention in October 2014. In his application to the European Court, lodged in 2008, he complained in particular of a lack of adequate medical care in detention (Article 3 of the Convention). Following his death, his partner, Ms Yusupova informed the Court of her wish to pursue the application on his behalf.

Law – Article 34 ( victim status ): The evidence before the Court convincingly showed that the applicant and Ms Yusupova were in a close relationship equating to “family ties”. The circumstances of the applicant’s case were similar to those in Koryak v. Russia ( 24677/10 , 13 November 2012), in which the Court had allowed t he next of kin to continue proceedings before it after the death of the direct victim. Both cases concerned the quality of medical assistance provided to a seriously ill detainee coupled with the question of the existence of effective domestic remedies. Th e Court therefore considered that Ms Yusupova had a legitimate interest in pursuing the application on the applicant’s behalf and that respect for human rights as defined in the Convention and the Protocols required a continuation of the examination of the case.

Conclusion : victim status upheld (unanimously).

Article 3: In the absence of any documents from the Government relating to the applicant’s treatment during the period from October 2007 to October 2009, the Court accepted the applicant’s allegations that he had been denied regular medical examinations an d anti-relapse treatment. This in itself cast serious doubts on the authorities’ fulfilment of their obligations under Article 3 towards the applicant, who, in view of his hepatitis C infection and history of tuberculosis, had required special medical atte ntion.

The Court went on to look more closely at the quality of the treatment the applicant received in institution no. LIU-15 following his admission to that facility in October 2012. On arrival, he was subjected to a number of basic clinical tests and e xaminations and placed on a drug regimen. However, despite the authorities’ knowledge of his long-term affliction with tuberculosis and the fact that he had remained tuberculosis-active for an unusually long period, it was not until February 2013, that is to say over five years after his arrest and the authorities’ resultant responsibility to address the applicant’s health issues, that a drug susceptibility test was performed for the first time. That test is the primary requirement established by the World Health Organization ( WHO ) for the correct diagnosis and treatment of all previously treated tuberculosis patients, given the particularly high risk they run of suffering from drug-resistant tuberculosis. The test woul d not only have allowed the efficient finalising of diagnostic procedures and allocation of the applicant’s case to a standard treatment category, but would also have guided the choice of appropriate regimen adjustments in line with the results of the test . The delay in conducting the applicant’s test was a breach of the WHO’s recommendations and risked depriving the treatment the applicant received of its major therapeutic effects.

In addition, although aware the applicant was suffering from hepatitis C, t he authorities took no steps to consider whether his treatment regimen was compatible with his liver disease. The first liver function test was not performed until February 2013, more than three months after the initiation of the new chemotherapy regimen a nd more than five years after the authorities became aware of his medical condition. The applicant was prescribed hepatoprotectors at the end of October 2013. Such reluctance on the part of the authorities ran counter to the WHO recommendation to perform l iver function tests at the start of and during tuberculosis treatment, and to give fewer hepatotoxic drugs to patients with serious liver diseases.

The Court further noted that, following his re-arrest in July 2013, the applicant – who by then was sufferin g from a severe and extremely advanced stage of tuberculosis requiring comprehensive and complex in-patient treatment – had spent a further three months in detention with no access to the requisite medical aid. For the Court, leaving him for that period wi thout vital medical assistance that might have enabled him to fight the illnesses that were threatening his life was unacceptable.

There had thus been serious deficiencies in the applicant’s treatment during the major part of his detention. As a result, t he applicant had been exposed to prolonged mental and physical suffering that diminished his human dignity. The authorities’ failure to provide him with the medical care he needed amounted to inhuman and degrading treatment within the meaning of Article 3.

Conclusion : violation (unanimously).

The Court also found unanimously a violation of Article 13 of the Convention in view of the absence of an effective domestic remedy to deal with the applicant’s complaints of inadequate medical care in detention.

Artic le 41: EUR 20,000 to be paid to Ms Yusupova; claim in respect of pecuniary damage dismissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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