Communicated on 4 March 2015

FIRST SECTION

Applications nos 54436/14 and 66252/14 Vladimir Pavlovich KLIMOV against Russia and Andrey Borisovich LAVROV against Russia lodged on 23 July 2014 and 7 October 2014 respectively

STATEMENT OF FACTS

The applicant in the first case, Mr Vladimir Pavlovich Klimov, is a Russian national, who was born in 1967 and is detained in prison hospital no. 1 in Chita, Zabaykalskiy Region.

The applicant in the second case, Mr Andrey Borisovich Lavrov, is a Russian national, who was born in 1967 and lives in Chelyabinsk.

They are represented before the Court by Ms I. Khrunova, a lawyer practising in Kazan.

The facts of the case, as submitted by the applicants, may be summarised as follows.

A. Application no. 54436/14

1. The applicant ’ s state of health

Since 2009 the applicant has been serving his sentence in correctional colony no. 1 of the Zabaykalskiy Region, in Nerchinsk.

In April 2012 the applicant was diagnosed with cancer of the left kidney. On 25 July 2012 he underwent ablation in the prison hospital of correctional colony no. 5, in Chita. A month later he was discharged from the hospital, despite his complaints of deteriorating health.

On 18 December 2012, in response to the applicant ’ s requests, a pulmonary fluorography was carried out. The test revealed “suspected nidal shadows (in the medial zones) on the right and left sides”. On 24 January 2013 the applicant underwent an MRI in a civil medical center, which confirmed that he had metastases in the lungs.

On 6 March 2013 a medical panel diagnosed the applicant with stage 3 cancer of the left kidney.

On 28 March 2013 the applicant was examined by another medical panel. The diagnosis was stage 4 cancer of the left kidney, multiple metastases in the lungs, ischemia, stenocardia, hypertension, atherosclerosis of the aorta and of the cerebral and peripheral blood vessels, chronic cholecystitis in the remission stage, chronic gastritis in the remission stage, and retina angiopathy. The panel concluded that the applicant was eligible for early release as he suffered from stage 4 malignant formations. That disease was included in the List of serious illnesses precluding detention of suspects and accused persons, as adopted by a decree of the Government of the Russian Federation on 14 January 2011 (hereinafter – the List) .

On 26 April 2013 the Ingondinskiy District Court ordered the applicant ’ s release. Relying, among other things, on the testimony by doctor K., according to whom the applicant ’ s condition was extremely grave, the court found that the applicant ’ s disease was “serious enough” to warrant his discharge from prison.

On 6 June 2013 the Zabaykalskiy Regional Court quashed the decision upon the prosecutor ’ s appeal and remitted the case for a fresh examination.

On 24 July 2013 the District Court rejected the applicant ’ s motion for release. The court noted that the medical panel held on 6 March 2012 had diagnosed the applicant with stage 3 cancer, a disease which was not included in the List. As to the examination carried out by the medical panel on 28 March 2013, the court found that it had been unlawfully conducted. The court also noted that the “applicant ’ s behavior did not manifest determination to get on the route for improvement”.

In November 2013 the applicant submitted a new motion for release. In the course of the hearing held on 21 November 2013 the District Court heard F., the head of the regional oncological dispenser, and K., a doctor of the prison hospital of colony no. 5. According to F., the applicant ’ s disease was not responsive to chemotherapy and only required symptomatic treatment without supervision by an oncologist. K. testified that the applicant ’ s condition was deteriorating, and the number of metastases was increasing.

On the same date the District Court dismissed the motion. The court accepted that the applicant suffered from stage 4 cancer. However, it held that

“ ... [ the applicant ] is particularly dangerous for the society, his improvement level is negligible, and according to the [colony] administration he has not got on the route for the improvement. [ The applicant ] regularly receives symptomatic treatment and, in view of the specificity of his disease, he does not need treatment of other kind. ”

On 23 January 2014 the Zabaykalskiy Regional Court upheld the decision on appeal, having fully endorsed the District Court ’ s reasoning. On 14 May 2014 the decision was upheld on cassation appeal.

The applicant ’ s lawyer sought an independent expert opinion from the Blokhin Oncological Scientific Centre of the Russian Academy of Sciences. According to the letter of 22 April 2014 signed by three specialists of the Centre, appropriate treatment could prolong the life expectancy of those suffering from stage 4 cancer for up to thirty months. Hence, in the specialists ’ opinion, there were grounds to believe that the applicant needed specific antitumor treatment.

In May and June 2014 the applicant ’ s sister unsuccessfully petitioned for the applicant ’ s transfer from correctional colony no. 1, where no anti-cancer treatment was available, to the prison hospital of colony no. 5.

On 2 July 2014 a new medical panel diagnosed the applicant with stage 3 kidney cancer with growing multiple lung metastases, metastases into the mediastinum lymph nodes, as well as with the same auxiliary diseases as before. The panel ’ s findings also referred to the results of the computer tomography which had apparently been conducted on 20 June 2014 and had revealed tuberculomas in the left lung.

In August 2014 the applicant ’ s lawyer filed a complaint against the administration of the correctional colony on account of their failure to provide the applicant with adequate medical care. The lawyer asked for the applicant ’ s transfer to the hospital of correctional colony no. 5.

On 1 October 2014 the District Court dismissed the complaint, but granted the request for transfer to the prison hospital. Having relied on the depositions of the representative of correctional colony no. 1 and of the applicant ’ s sister, the court found that the applicant was not receiving anti ‑ cancer treatment in colony no. 1, as such treatment was to be prescribed by an oncologist and the colony ’ s medical unit did not employ such a specialist.

According to the applicant, the decision of 1 October 2014 was not complied with.

On 20 October 2014 the applicant ’ s lawyer sought an opinion of an independent forensic expert. Having studied the applicant ’ s medical file, the expert found that since the end of 2012 the applicant ’ s condition had called for tumor immunotherapy. The expert also noted that since August 2012 the applicant ’ s treatment had been merely symptomatic and the applicant ’ s drug regimen had been limited to painkillers.

It appears that on 25 November 2014 the applicant was sent to prison hospital no. 1 in Chita, Zabaykalskiy Region .

According to the applicant, on a number of occasions during his detention he was transferred between correctional colony no. 1 in Nerchinsk and the hospital in correctional colony no. 5 in Chita. With a round trip covering the distance of some 600 km, those transfers were detrimental to his health and resulted in significant weight loss. The deleterious effect was aggravated by the transportation conditions: t he applicant travelled in a non ‑ ventilated compartment together with up to thirty other inmates, including smokers.

2. Application of an interim measure and the subsequent developments

On 23 July 2014 the applicant asked the Court to apply Rule 39 of the Rules of Court and to indicate to the Russian authorities that he should be provided with the necessary medical care and released from prison on health grounds.

On 5 August 2013 the Acting President of the Section decided to request the Government under Rule 54 § 2 (a) of the Rules of Court to submit information of the applicant ’ s health, the amount, quality and adequacy of medical aid he received or needed to receive, and the current conditions of the applicant ’ s detention.

Following the receipt of the Government ’ s submissions and the applicant ’ s comments to them, on 12 November 2014 the Acting President of the Section decided to indicate to the Russian Government, under Rule 39 of the Rules of Court, that the applicant should be immediately examined by medical experts independent from the penitentiary system, including by an oncologist. The experts were to be asked whether the treatment and physical care the applicant was receiving was adequate to his condition, whether his current state of health was compatible with detention in the conditions of a correctional colony or a prison hospital, and finally, whether the applicant ’ s current condition required his placement in a specialised hospital or his release. The Russian Government were also asked to ensure the applicant ’ s immediate transfer to a specialised hospital if the medical experts conclude that he required placement in such a hospital.

In response to the Court ’ s request, the Government provided the Court with a typed copy of the applicant ’ s medical history prepared by the detention authorities, and with certificates issued by the head of correctional colony no. 1 and by the head of the prison hospital no. 1. Having relied on those documents, the Government argued that the applicant received adequate medical assistance.

The Government also answered the three questions which, in his letter of 12 November 2014, the Acting President had asked to address to independent medical experts. In particular, the Government stressed that upon the applicant ’ s arrival at every correctional institution, he had been subjected to clinical tests and was examined by specialists. Thus, he had been placed under regular medical supervision in relation to his illnesses. The Government submitted that the applicant ’ s condition was satisfactory and that there was no threat to his life. They further stressed that his condition did not call for the placement in a specialised hospital or release .

The applicant commented on the Government ’ s information, having insisted that the medical assistance afforded to him was not adequate and that his life was under eminent danger unless antitumor and radiation treatment were administered to him. He relied on the results of the medical examination of 18 December 2014, which had revealed new metastases in his right adrenal gland, in the left brain hemisphere and in the right cerebellum hemisphere. The applicant also submitted to the Court an alternative expert report obtained by his lawyers. According to the report, he had not received any treatment for his cancer until December 2014, and at the moment his prospects of survival were poor.

B. Application no. 66252/14

1. The applicant ’ s state of health

It appears that the applicant was diagnosed with lymphoma in 2012 when he was serving his sentence in Chelyabinsk. He was then put under supervision of a medical personnel of prison hospital no. 3 (hereinafter “the hospital”) of the Chelyabinsk Region. He underwent two courses of chemotherapy and a histological test.

In October 2012 the applicant was released from prison on health grounds. He was then monitored by an oncologist in a civil hospital.

By judgments of 30 September 2013, 22 November 2013, and 16 December 2013 the applicant was convicted of fraud, robbery and theft respectively. He was sent to serve his sentence to detention facility no. 3. On 3 March 2014 he was transferred to the hospital.

On 13 March 2014 a medical panel examined the applicant and diagnosed him with progressing non-Hodgkin lymphoma in acute III B stage with lesions of cervical, axillary and abdominal lymph nodes. The panel concluded that the applicant was eligible for early release as he suffered from malignant formations of lymphatic and haematogenous tissues, a disease included in the List of serious illnesses precluding detention of suspects and accused persons, as adopted by a decree of the Government of the Russian Federation on 14 January 2011 (hereinafter ‑ the List) .

On 10 April 2014, with reference to the conclusions of the medical panel, the applicant lodged a motion for early release. On 26 May 2014 the Metallurgicheskiy District Court of Chelyabinsk dismissed the request. Having accepted that the applicant ’ s illness was included in the List, the court, nevertheless, found that the drugs necessary for his treatment were available in the prison hospital, and that the applicant was undergoing all the necessary medical procedures. The court further pointed out that it was not clear who would take care of the applicant in case of his release from prison. The applicant did not appeal against the decision.

On 30 June 2014 the applicant ’ s sister bound herself in writing to take care of the applicant should he be released.

According to a certificate issued by the hospital at the request of the applicant ’ s lawyer, drugs necessary for the chemotherapy were unavailable at the hospital.

On 1 July 2014 the medical panel again examined the applicant. The diagnosis was: progressing non-Hodgkin lymphoma in acute IV B stage with lesions of abdominal lymph nodes. It was once again noted that the applicant was eligible for release on health grounds.

On 29 July 2014 the applicant lodged another motion for release. He submitted that his disease had progressed to its final stage and that he had relatives who could take care of him.

On 12 September 2014 a hearing was held. B., a doctor from the hospital, testified that the applicant needed chemotherapy and radiation therapy, but was unable to receive such treatment in detention since the necessary equipment was unavailable at the hospital.

On the same date the court dismissed the motion once again, having concluded that the applicant was receiving all the necessary treatment in the hospital. The court also noted that in October 2012 the applicant had been released from prison, but had then been convicted of new crimes.

The applicant appealed. On 28 November 2014 the Chelyabinsk Regional Court quashed the decision of 12 September 2014 and ordered the applicant ’ s release. With reference to B. ’ s testimony, the Regional Court held that the District Court ’ s findings as to the adequacy of the treatment received by the applicant in the hospital were not in accordance with the established facts. It also pointed out the District Court ’ s failure to comment on the undertaking of the applicant ’ s sister to take care of the applicant after his release.

On an unspecified date the applicant was discharged from prison.

2. Application of an interim measure and the subsequent developments

On 16 October 2014 the Court, in response to the applicant ’ s request under Rule 39 of the Rules of Court, decided to indicate to the Government that the applicant should be immediately examined by medical experts independent from the penitentiary system, including by an oncologist. The experts were to be asked whether the treatment and physical care the applicant was receiving was adequate to his condition, whether his current state of health was compatible with detention in the conditions of a correctional colony or a prison hospital, and finally, whether the applicant ’ s current condition required his placement in a specialised hospital or his release. The Russian Government were also asked to ensure the applicant ’ s immediate transfer to a specialised hospital if the medical experts conclude that the applicant required placement in such a hospital.

In response to the Court ’ s request, the Government submitted that the applicant was detained in prison hospital no. 3 of the Chelyabinsk Region and regularly underwent examinations and treatment in prison hospital no.1 of the same region. The Government provided the Court with a handwritten and a typed copies of the applicant ’ s medical history prepared by the detention authorities, and certificates issued by the deputy head of prison hospital no. 1 of Chelyabinsk. The Government also answered the three questions which, in his letter of 16 October 2013, the Acting President had asked to address to independent medical experts. In particular, they submitted that the applicant ’ s condition was due to the gravity of the main disease, that he was in pain, often coughed up blood and suffered from increasing asthenia, and that the lymph nodes continued growing. The Government noted that the applicant ’ s condition was life-threatening. However, according to them, the prison hospital employed specialists and was provided with drugs and equipment necessary to treat the applicant ’ s disease. In March and June 2014 the applicant was offered chemotherapy, but refused it for unknown reasons .

The applicant stressed that the authorities had failed to provide him with chemotherapy and radiation therapy and with necessary drugs. He further noted that since the autumn in 2013 he had not been provided with adequate medical care, and as result his cancer progressed to its final stage.

COMPLAINT

The applicants complained under Article 3 of the Convention about the lack of adequate medical care in detention and the authorities ’ failure to release them on health grounds.

QUESTIONS TO THE PARTIES

1. Taking into account the applicant ’ s medical history, have the Government met their obligation to ensure that his health and well-being are being adequately secured by, among other things, providing him with the requisite medical assistance (see McGlinchey and Others v. the United Kingdom , no. 50390/99, § 46, ECHR 2003 ‑ V), as required by Article 3 of the Convention?

2. Given the Government ’ s response to the Court ’ s decisions to impose, in the case, interim measures under Rule 39 of the Rules of Court, has there been a hindrance by the State in the present cases with the effective exercise of the applicant ’ s right of application, ensured by Article 34 of the Convention?