Published on 27 May 2024
SECOND SECTION
Application no. 35348/21
Alexandr RUSCHIH against the Republic of Moldova
and 3 other applications
(see list appended)
communicated on 6 May 2024
SUBJECT MATTER OF THE CASES
The cases concern infection in prison with a life-threatening transmissible disease (application no. 35348/21), insufficient or inadequate medical care in prison for detainees with life-threatening health conditions (applications nos. 40578/22, 45689/22 and 18571/23), the death of the applicants’ relative due to allegedly insufficient or inadequate medical care in prison (applications nos. 40578/22 and 18571/23), the material conditions of detention (application no. 35348/21) and reasons for pre-trial detention (application no. 45689/22). The applicants also complain of the inadequacy of an investigation into the circumstances of death (application no. 18571/23) and of the absence of domestic remedies in respect of their complaints concerning inadequate medical assistance in prison (applications nos. 40578/22 and 18571/23).
The applicants rely on Articles 2 and/or 3 of the Convention (in all cases), on Article 5 § 3 of the Convention (application no. 45689/22) and on Article 13 of the Convention (applications nos. 40578/22 and 18571/23). A short summary of each application is provided in the appendix.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Articles 2 and/or 3 of the Convention? In particular:
(a) Considering their medical condition, have the Government met their obligation to ensure that the applicants’ or their relative’s life, health and well-being (in all applications) were adequately secured by providing them with the requisite medical assistance as required by Articles 2 and 3 of the Convention (see Gorelov v. Russia, no. 49072/11, §§ 41-43, 9 January 2014; Kats and Others v. Ukraine, no. 29971/04, §§ 103-104, 115-116, 18 December 2008; and Blokhin v. Russia [GC], no. 47152/06, §§ 135-140, 23 March 2016)?
The parties are invited to answer the following questions:
i) When did the authorities become aware of the applicants’ or their relative’s health conditions?
ii) When was the diagnosis made?
iii) Were the applicants or their relative prescribed any treatment?
iv) Were the applicants or their relative provided with the prescribed treatment? If not, for how long were they unable to receive it?
(b) In application no. 35348/21 does the respondent State bear responsibility under the Convention for the applicant’s infection with HIV (see Gorelov v. Russia, no. 49072/11, §§ 41-43, 9 January 2014)?
2. In application no. 35348/21, do the conditions of detention in prisons nos. 8 and 16 in which the applicant was held comply with the requirements of Article 3 of the Convention (see Muršić v. Croatia [GC], no. 7334/13, §§ 99-101, 20 October 2016)?
3. Having regard to the procedural protection of the right to life (see Gorelov, cited above, § 43), was the investigation by the domestic authorities into the death of the applicant’s relative in application no. 18571/23 in breach of Article 2 of the Convention?
4. In application no. 45689/22, was the applicant’s state of health compatible with his continued detention (in view of the absence or presence of adequate treatment for his condition in prison)? In particular, did the domestic courts assess sufficiently whether the applicant’s state of health had an impact on the grounds which justified his pre-trial detention and whether alternative measures could have secured his presence at the trial, in compliance with Article 5 § 3 of the Convention (see Kudła v. Poland [GC], no. 30210/96, § 93, ECHR 2000‑XI; Hagyó v. Hungary, no. 52624/10, §§ 57‑58, 23 April 2013; and Cosovan v. the Republic of Moldova, no. 13472/18, § 100, 22 March 2022)?
5. In applications nos. 40578/22 and 18571/23, did the applicants have at their disposal an effective domestic remedy for their complaints regarding medical assistance in detention, as required by Article 13 in conjunction with Articles 2 or 3 of the Convention (see Tselovalnik v. Russia, no. 28333/13, §§ 63-69, 8 October 2015)?
The Government are requested to submit a copy of the applicants’ or their relative’s medical files.
APPENDIX
List of cases
No.
Application no.
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Representative
Principal medical condition
Summary of facts
Complaints
1.
35348/21
lodged on 22/06/2021
Alexandr RUSCHIH
1984
Bender
Moldovan
HIV (stage A1)
The applicant has been in detention since 17 September 2014 and since 30 January 2018 has been serving a 12-year prison sentence in prison no. 8. In December 2018, during treatment in prison hospital no. 16, he was diagnosed for the first time with asymptomatic HIV (stage A1).
Stay in prison no. 16 from 16 July to 27 December 2018. Stay in prison no. 8 from 30 January to 16 July 2018, from 27 December 2018 to 27 February 2019, from 31 July to 20 September 2019, and from 1 November 2019 to present.
On 4 February 2021 the Chișinău Court of Appeal finally dismissed his claim for compensation for allegedly inadequate material conditions of detention as ill-founded, relying on the position of the Prison Administration Agency.
Article 2 of the Convention:
alleged infection with HIV in detention.
Article 3 of the Convention:
material conditions of detention in prisons nos. 8 and 16 (detention with HIV-positive inmates, overcrowding with personal space under 4 sq.m. per detainee, lack of or insufficient electric light, lack of or inadequate hygienic facilities, lack of or poor quality of bedding and bed linen, inadequate temperature, lack of fresh air, passive smoking, lack of toiletries, quality of food, no or restricted access to potable water).
2.
40578/22
lodged on
13/08/2022
Vera BOJENINA
1950
Ialoveni
Moldovan
Represented by: Veaceslav ROPOT
Cervical lymph node cancer
The applicant is the mother of B.O. who was serving a life sentence in prison no. 17 from 2002 until he died of cervical lymph cancer on 31 December 2019.
B.O. complained for the first time of a swelling on the neck in July 2016. In November 2016 he was transferred to prison hospital no. 16 where he received symptomatic treatment. In August 2017 he was seen by an oncologist and diagnosed with terminal stage cancer. In September 2017 B.O. took a course of chemotherapy.
Articles 2 and 3 of the Convention:
Allegedly delayed diagnosis and inadequate medical assistance in detention which resulted in B.O.’s death.
Article 13 of the Convention:
absence of any effective remedy in respect of the complaint concerning inadequate medical assistance in detention.
3.
45689/22
lodged on
06/09/2022
Gheorghe NANI
1990
Chișinău
Moldovan
HIV (symptomatic stage C), pyelonephritis and nodular pulmonary tuberculosis (active phase).
From 13 April 2022 the applicant was in detention on remand in prison no. 13 and subsequently in prison hospital no. 16.
On 17 May 2022 the applicant learned that he had HIV, after taking a rapid diagnosis test for HIV/Syphilis.
On 16 June 2022 the applicant was transferred to prison hospital no. 16, where he was diagnosed with HIV (symptomatic stage C), pyelonephritis and nodular pulmonary tuberculosis (active phase).
On 15 June 2022 the Chișinău Court of Appeal upheld the decision of the investigating judge to extend by another 30 days the applicant’s detention pending trial.
Articles 2 and 3 of the Convention:
delay of 2 months to start treatment for a life-threatening disease; allegedly inadequate medical assistance in detention; significant deterioration of state of health (substantial weight loss endangering applicant’s life).
Article 5 § 3 of the Convention:
Applicant’s state of health allegedly incompatible with detention (the applicant refers to domestic prison rules which would justify an exemption from serving a custodial sentence to inmates with advanced tuberculosis, chronic pyelonephritis, or advanced HIV/AIDS).
4.
18571/23
lodged on
27/04/2023
Liuba BJASSO
1954
Chișinău
Moldovan
Represented by: Constantin TĂNASE
Toxic osteomyelitis of the mandible
The applicant is the mother of I.B. who suffered from toxic osteomyelitis of the mandible.
On 2 February 2015 I.B. was placed in detention pending trial and on 18 June 2015 the Chișinău District Court convicted him and sentenced him to 5.5 years’ imprisonment.
I.B. and his lawyer repeatedly complained of his state of health and of the lack of medical assistance in prison, requesting emergency surgery in a hospital outside the prison.
On 7 July 2015 he died in prison hospital no.16.
A criminal investigation into the circumstances of his death was initiated on 3 September 2015 and is ongoing.
Article 2 of the Convention:
Allegedly inadequate medical assistance in detention which resulted in death; allegedly inadequate investigation into the circumstances of death, lengthy and ineffective investigation.
Article 13 of the Convention:
Alleged absence of any effective remedy in respect of the complaint concerning inadequate medical assistance in detention.