JOINT DISSENTING OPINION OF JUDGES POWER-FORDE AND ANTONOVYCH

We follow the Chamber ’ s reasoning on a violation of Article 3 of the Convention both under its substantive and its procedural limbs. However, we cannot agree that the applicant ’ s complaint concerning the lack of adequate medical assistance in detention is manifestly ill-founded (§§ 45-48). We consider that his complaint in this regard is well founded and admissible.

It is clear from the facts of the case that the State authorities were aware of the applicant ’ s suffering from optic sub-atrophy in the left eye. Subatrophy is the most frequent reason for eye enucleation after trauma and a series of surgical operations for treatment of post-traumatic eyeball sub-atrophy may be required in order to save an individual ’ s eyesight. [1] The evidence demonstrates that the applicant suffered sub-atrophy as a result of a trauma received during his first arrest on 25 February 2004. However, in our view, the State has not demonstrated that he received adequate medical treatment for this condition which was caused, clearly, by the trauma sustained. We accept that the applicant did not submit specific medical records from November 2004 to April 2005 indicating what treatment he had received during that period when he was not imprisoned. However, he does not claim to have received specific treatment at that time but rather that he was scheduled for eye surgery and that as a result of his second arrest he was prevented from proceeding with that planned surgical procedure.

On 20 April 2005 , the day after his second arrest , Kharkiv Hospital no. 11 issued a certificate stating that the applicant had sustained head and left shoulder injuries and a haematoma on his left ear (§10). On 5 May 2005 the same hospital diagnosed him with an old optic sub-atrophy in the left eye (§ 13). On 6 May 2005 it was noted in the medic al file of the SIZO that on 25 February 2004 (the date of his first arrest) the applicant had suffered an eye injury. He was diagnosed with a cataract and with a sub-atrophy of the left eye (§ 14). Numerous medical certificates testify that on many occasions the applicant requested medical assistance because of pain in his left eye. By way of response, according to the Government, the applicant had been prescribed ‘ treatment ’ (§ 42). This, in our view, is entirely insufficient.

The Court ’ s jurisprudence on the right of prisoners to medical treatment whilst in detention is well established. The right to health in prison was developed at the same time as the right to humane conditions of detention. The State is under an obligation not only to provide some form of medical assistance to an ill prisoner, but to provide, the ‘ requisite medical assistance. ’ [2] In Kudla v. Poland the Court summarised the obligations incumbent upon the State:-

‘ Article 3 compels the State to ensure that a person is detained in conditions that are compatible with respect for his human dignity, that is the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding an unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well being are adequately secured, by among other things, providing him with the requisite medical assistance. ’ [3]

Thus, whilst the applicant in the instant case was not entitled to ‘ state of the art ’ medical assistance he was entitled to and ought to have received requisite medical assistance for the serious eye condition from which he suffered in order to have his health (and particularly his vision) and well being secured. Visits by or consultations with a prison doctor are not, in themselves, sufficient to discharge the State ’ s obligations under Article 3.

In our view, in dismissing the applicant ’ s claim in respect of the inadequacy of the medical care he received, the majority fails to address, sufficiently and convincingly, the question of the adequacy of the medical treatment which the applicant actually received whilst detained. The judgment refers, in very general terms, to the fact that the applicant was prescribed ‘ treatment ’ for his condition. However, such a general statement is made without any attempt to identify the actual treatment prescribed thus making it impossible to determine whether such treatment, if administered, was either requisite or adequate. In addition, no inquiries appear to have been made by the authorities as to whether the eye surgery was, in fact, scheduled for the applicant or, indeed, whether it could proceed.

The authorities must ensure that there is a comprehensive therapeutic strategy aimed at curing the detainee ’ s diseases or preventing their aggravation rather than merely treating them on a symptomatic basis (see Hummatov , §§ 109, 114; Popov v. Russia , § 211). Furthermore, they must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (See Hummatov , §§ 116; and Holomiov v. Moldova ).

The above considerations from our point of view are sufficient to conclude that the applicant was not provided with adequate medical assistance while in detention.

[1] http://www.reg-surgery.ru/1_2003/articles_eng/downloads/250503-003.pdf

[2] McGlinchey and Others v. the United Kingdom , no. 50390/99, § 46, ECHR 2003 ‑ V; Mouisel v. France , no. 67263/01, § 40, ECHR 2002 ‑ IX; Aerts v. Belgium , 30 July 1998, § 64, Reports of Judgments and Decisions 1998 ‑ V

[3] KudÅ‚a v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI