CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 décembre 2010

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display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION             CASE OF KOZHOKAR v. RUSSIA   (Application no. 33099/08)               JUDGMENT     STRASBOURG   16 December 2010   FINAL   20/06/2011     This judgment has become final under Article   44 §   2 (c) of the Convention. It may be subject to editorial revision. In the case of Kozhokar v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 25 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 33099/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Semenovich Kozhokar (“the applicant”), on 23 April 2008. 2.     The applicant, who had been granted legal aid, was represented by Mr   P. Finogenov, a lawyer with the International Protection Centre. The Russian Government (“the Government”) were represented by Mr   G.   Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had been detained in inhuman conditions, that he had not received adequate medical care and that he had not had adequate remedies at his disposal for his complaint about the inhuman conditions of his detention. 4.     On 24 November 2009 the President of the First Section decided to communicate the above complaints to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). The President made a decision to give the application priority treatment (Rule 41 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1980 and is currently serving a prison sentence in correctional colony no. 7 in the Tula Region. A.     Criminal proceedings against the applicant 6.     In 2002 the applicant was convicted of drug trafficking and sentenced to seven years and three months' imprisonment. In 2005 he was granted an early release. 7.     In the summer of 2006 the police received an anonymous complaint stating that the applicant and his friend Mr O. were making and selling drugs in their flats. The police questioned the applicant's neighbours, who confirmed unanimously that the applicant and Mr O. were drug dealers. 8.     The police made a series of test purchases of drugs from the applicant and Mr O. In September and early October 2006 two persons code-named “Shadow” and “Yermak” asked the applicant and Mr O. to make drugs for them. They went on several occasions to Mr   O.'s flat accompanied by their acquaintance Ms G. The applicant and Mr O. made opium from the ingredients bought by the applicant with Shadow's and Yermak's money. They then consumed the opium together. 9.     On 18 October 2006 Yermak called the applicant, complained of withdrawal symptoms and asked him to procure him drugs. The applicant asked Ms G. to take 500 Russian roubles from Yermak and to change it in a nearby pharmacy. He then bought opium ingredients with that money and made opium in his flat. He met Yermak several hours later, handed a part of the opium over to him and left the remainder for himself. Yermak gave the opium received from the applicant to the police. 10.     On the same day the applicant was arrested and charged with drug trafficking. 11.     During the trial the Proletarskiy District Court of Tula heard numerous witnesses, including Shadow, Ms G., the applicant's neighbours and the police officers who had supervised the test purchases. Yermak's pre-trial depositions were read out as he had died before the start of the trial. The trial court also examined expert opinions and material evidence, such as the opium received by Shadow and Yermak from the applicant and Mr O. and utensils for making opium found in the applicant's and Mr O.'s flats. 12.     On 19 September 2007 the Proletarskiy District Court of Tula acquitted the applicant of drug trafficking in respect of the episodes of September and early October, finding that on those occasions he had made drugs for personal consumption with his acquaintances rather than for sale. It further convicted the applicant of drug trafficking for selling drugs on 18   October 2006. The applicant was sentenced to seven years' imprisonment. 13.     On 12 December 2007 the Tula Regional Court upheld the judgment on appeal. B.     Conditions of the applicant's detention in the remand centre 1.     The Government's description of the conditions of detention 14.     From 20 October 2006 to 27 December 2007 the applicant was held in remand centre no. IZ-71/1 in Tula. 15.     According to certificates of 23 October 2009 issued by the remand centre administration and submitted by the Government, from 20 October to 13   November 2006 the applicant was held in cell no. 77, which measured 80.4 sq. m and housed thirty-one to forty inmates. From 13 November 2006 to 31 January 2007 he was held in cell no. 76, which measured 37.4 sq. m and housed thirteen to twenty inmates. From 31 January to 26 September 2007 he was held in cell no. 17, measuring 76.9 sq. m and housing twenty-two to forty inmates. The Government also produced the plan of those cells confirming the cell measurements. 16.     The same certificates state that the inmates were allowed to take a shower once a week for forty minutes and had an hour-long daily walk. It was not possible to establish the frequency of family visits or of the applicant's meetings with counsel. The applicant was also frequently taken out of the cell to see a doctor. Inmates suffering from infectious diseases, such as scabies, tuberculosis, HIV, hepatitis or sexually transmittable diseases, were held separately from other inmates. The applicant was never held together with anyone suffering from scabies or tuberculosis. 2.     The applicant's description of the conditions of detention 17.     According to the applicant, he was held in cells nos. 77, 76, 17 and   117. Cell no. 77 measured 48 sq. m. It was equipped with fifty bunks and housed forty-four to forty-seven inmates. Cell no. 76 measured 24   sq.   m, was equipped with twenty bunks and housed thirty to forty-seven inmates. Cell no. 17 measured 48 sq. m. It was equipped with forty-two bunks and housed twenty-seven to fifty-eight inmates. As the number of bunks was often insufficient, inmates had to take turns to sleep. Punishment cell no. 117, where the applicant was held alone from 2 to 17 February 2007, measured 2 sq. m. 18.     All cells were insufficiently lit. There was only one 50-watt light bulb in each cell. The windows were small. Some of them were broken and inmates had to cover the holes with cloth. There was no forced ventilation and it was extremely hot in summer and very cold in winter. The cells were stuffy and smoky. 19.     Each cell was equipped with a lavatory bowl which had no flush system. This was not separated from the living area and the person using the toilet was in view of the other inmates. The dining table was very close to the toilet. 20.     The cells swarmed with rats, bugs, lice, spiders and cockroaches. The walls were covered with mould. Articles of hygiene were sparse. The bedding was dirty and ragged. All complaints to the detention facility administration about poor sanitary conditions went unanswered. 21.     The applicant shared his cell with persons suffering from tuberculosis and scabies. He allegedly contracted scabies while in IZ-71/1. 22.     Inmates were allowed to take a shower once a week. The entire cell population was taken to the shower hall for a total of twenty or thirty minutes. There were only four shower stands and the inmates had insufficient time to shower. 23.     The food was insipid. There was neither fruit nor meat. Vegetables were rarely served. Fish was served in small quantities of no more than 40 grams per person per day. Although the applicant was prescribed a special diet by a doctor, no special food was provided. 24.     The applicant submitted written statements by his co-detainees confirming his description of the conditions of detention. 25 .     The applicant attempted to lodge complaints about the appalling conditions with the prosecutor of the Tula region and the head of the penitentiary department of the Tula region. The remand centre administration did not dispatch his complaints. The warders threatened that he would suffer if he attempted to complain again. He was then put in a punishment cell for ten days. 26 .     It appears from the decision of 2 February 2007 issued by the acting head of remand centre no. IZ-71/1 that the applicant was put in a punishment cell for wrenching the tap off a drinking water tank and using it to make a hole in the wall through which he communicated with the inmates in the neighbouring cell. 27.     The applicant also alleged that during the trial he had been regularly transported to the courthouse in inhuman conditions. C.     Medical assistance 28.     According to a certificate of 23 October 2009 issued by the remand centre administration and submitted by the Government, remand centre no.   IZ-71/1 in Tula, where the applicant was held from 20 October 2006 to 27   December 2007, had a medical unit. The medical staff consisted of a general physician, a specialist in skin and venereal diseases, a surgeon, an otolaryngologist, a dentist, a radiologist, a tuberculosis specialist, physician assistants and nurses. The unit had all the necessary equipment and medication. 29.     On 23 October 2006 the applicant was examined by a physician. He informed the doctor that he had been HIV-positive since 1999 and that he was also infected with hepatitis B and C viruses. On the same day he was examined by a psychiatrist who diagnosed him with drug withdrawal syndrome. An HIV antibody blood test confirmed that the applicant was indeed HIV-positive. A chest photofluorography was also performed. 30 .     On 13 November 2006 the applicant was examined by a drug addiction specialist from an HIV medical unit. He noted that the disease had attained clinical stage 3, but that the applicant's state of health was satisfactory. He prescribed a special diet. He further recommended that the applicant be held in a special cell for HIV-positive inmates and that general blood and urine tests and chest photofluorography be performed every six months. 31.     On 23 January 2007 the applicant was examined by a psychiatrist. He complained of headache and liver pain. The doctor prescribed a pain reliever and liver pills. 32.     On 7 March 2007 the applicant was examined by a nurse. He complained of liver pain. The nurse prescribed hepatoprotective herbal pills and antispasmodic pills. 33.     On 23 March 2007 the applicant was examined by a surgeon. On 27   March 2007 a chest photofluorography was performed. 34.     On 9 April 2007 general blood and urine tests were performed. 35.     On 20 April 2007 a hepatitis C antibody blood test confirmed that the applicant was suffering from chronic hepatitis C. 36.     On 22 April 2007 the applicant was examined by a psychiatrist. 37.     On 25 April 2007 CD4, CD8 and viral load tests were made. The applicant's CD4 count was 0.462 x 10 9 /l (equivalent to 462 cells/mm 3 ), while his HIV RNA (viral load) was 9,215 copies/ml. 38.     On 8 June 2007 a nurse explained to the applicant the results of the CD4 and viral load tests. 39.     On 22 August 2007 the applicant was examined by a general physician. He complained of pain in his left shoulder joint. He was diagnosed with arthrosis and prescribed anti-inflammatory treatment. 40.     On 26 September 2007 a chest photofluorography was performed. 41.     On 24 October 2007 CD4 and viral load tests were made for the second time. The applicant's CD4 count was 0.231 x 10 9 /l (equivalent to 231 cells/mm 3 ), while his HIV RNA (viral load) was 5,282 copies/ml. 42.     On 25 October 2007 the applicant was diagnosed with dermatitis and prescribed treatment for dermatitis and hepatoprotective pills. 43.     On 30 October 2007 the applicant complained about insomnia and was prescribed sleeping pills. 44 .     At the end of 2007 a treatment schedule for 2008 was prepared. It was recommended that the applicant should be examined twice a year by a general physician, a tuberculosis specialist and an infectious disease specialist. Chest photofluorography and abdominal ultrasound scans were to be performed twice a year and the applicant was to receive a special diet. 45.     On 27 December 2007 the applicant was examined by a general physician before being transferred to the correctional colony. The examining doctor confirmed the previous diagnosis. On the same day the applicant was transferred to correctional colony no. 7 in the Tula region. 46.     On 17 January 2008 general blood and urine tests were performed. 47.     On 20 February 2008 the applicant was examined by the colony's physician assistant. He noted that the applicant's health was satisfactory, his skin was healthy and the lymph nodes were not enlarged. 48.     On 22 February 2008 the applicant was admitted to the prison hospital of the Tula region (no. IK-2, hereafter “Tula prison hospital”). He was examined by a neuropathologist and an ophthalmologist and underwent an abdominal ultrasound scan and a general blood test. The doctors prescribed anti-inflammatory treatment for arthrosis, hepatoprotective pills and vitamins. 49.     On 27 February 2008 CD4 and viral load tests were performed. The applicant's CD4 count was 0.447 x 10 9 /l (equivalent to 447 cells/mm 3 ), while his HIV RNA (viral load) was 3,377 copies/ml. 50.     The applicant was discharged from hospital on 28 February 2008. 51.     On 6 March 2008 the applicant was examined by the colony's physician assistant. He complained of an aching shoulder joint and liver pains. The physician's assistant noted that the applicant's health was satisfactory. 52.     On the same day the applicant was examined by a psychiatrist who diagnosed him with heroin addiction in forced remission. 53.     On 16 June 2008 the applicant complained of dizziness. He was examined by a nurse who diagnosed him with low blood pressure and prescribed vitamins. 54.     On 15 September 2008 the applicant was again examined by the colony's physician assistant. The applicant again complained of liver pain and an aching shoulder joint. The physician assistant noted that the applicant's gall bladder was deformed but his health was otherwise satisfactory. 55.     On 31 October 2008 the applicant again complained of an aching shoulder joint. He was prescribed pain relievers. 56.     On 7 November 2008 the applicant was admitted to the surgery unit of Tula prison hospital. His shoulder joint was X-rayed and general blood and urine tests were made. He was diagnosed with arthrosis and prescribed pain relievers and physiotherapy. 57.     On 14 November 2008 the applicant was discharged from hospital. 58 .     At the end of 2008 a treatment schedule for 2009 was prepared. It was noted that the applicant's HIV condition had attained clinical stage 3. It was recommended that the applicant be examined twice a year by a general physician, a tuberculosis specialist and an infectious disease specialist. He was also to undergo laboratory examinations twice a year, and chest photofluorography and abdominal ultrasound scans were to be performed twice a year. The applicant was also to receive a special diet. 59.     On 12 February 2009 the applicant was granted disability status. 60.     On 19 February 2009 the applicant was examined by the colony's physician assistant, who found that his health was satisfactory. 61.     On 24 September 2009 the applicant was again examined by a physician assistant, who prescribed treatment for a respiratory infection and gum inflammation. 62.     On 22 October 2009 the applicant was examined by a physician. He complained of fever, abdomen pains, cough, headache and heartburn. He was prescribed antibacterial pills. 63.     On 23 October 2009 general blood and urine tests were made. 64.     On 10 November 2009 the applicant was taken to Tula prison hospital for examination. He was examined by an ophthalmologist, a surgeon, a neuropathologist, a dentist, a psychiatrist and a general physician. He underwent general blood and urine tests, an ultrasound scan of the abdominal area and an electrocardiogram. He received vitamins and neuroleptic drugs. 65.     On 11 November 2009 CD4 and viral load tests were performed. The applicant's CD4 count was 0.562 x 10 9 /l (equivalent to 562 cells/mm 3 ), while his HIV RNA (viral load) was 7,845 copies/ml. 66.     On 20 November 2009 the applicant was discharged from hospital. 67 .     At the end of 2009 a treatment schedule for 2010 was prepared. It was recommended that the applicant be examined twice a year by a physician, a tuberculosis specialist and an infectious disease specialist. Chest photofluorography, abdominal ultrasound scans and gastro-duodenoscopy were to be performed twice a year and the applicant was to receive a special diet. 68.     On 28 January 2010 the applicant was again taken to Tula prison hospital for examination. He was examined by an ophthalmologist, a surgeon, a neuropathologist, a dentist, a psychiatrist, a dermatologist and an otolaryngologist and underwent an ultrasound scan of the abdominal area and a chest photofluorography. General blood and urine tests were also made. He received vitamins and physiotherapy. He was discharged on 10   February 2010. The hospital doctors recommended treatment for arthritis and gall bladder deformation and regular supervision by a general physician and a psychiatrist. 69.     On 25 February 2010 the applicant was examined by a physician assistant, who found that his condition was satisfactory.   70.     On 10 March 2010 a hepatitis B antibody blood test was performed which established that the applicant did not have hepatitis B.   II.     RELEVANT DOMESTIC LAW 71.     Section 22 of the Detention of Suspects Act (Federal Law no.   103 ‑ FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 72.     Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees without exception. In particular, section   III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee. On arrival at a detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. Particular attention must be paid to individuals suffering from contagious conditions. No later than three days after the detainee's arrival at the detention facility, he should receive an in-depth medical examination, including fluorography. During the in-depth examination a doctor should record the detainee's complaints, study his medical and personal history, record injuries if present, and recent tattoos, and schedule additional medical procedures if necessary. A doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 73.     Subsequent medical examinations of detainees are performed at least twice a year or at the detainees' request. If a detainee's state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee's medical history. The detainee should be fully informed of the results of the medical examinations. 74.     Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake. 75 .     Section X of the Regulation regulates medical examinations, monitoring and treatment of detainees suffering from HIV. In particular, it provides that medical examinations, monitoring and treatment of detainees infected with HIV should be performed in accordance with the general standards of medical assistance to HIV-positive patients. All HIV-positive detainees should be registered and their condition should be monitored regularly to secure timely diagnosis and treatment of diseases that may accelerate the progression of the HIV infection, timely identification of symptoms of such progression and timely prescription of specific therapy. During the initial examination of an HIV-infected detainee a doctor must confirm his HIV status, identify the clinical stage of the disease, detect possible opportunistic infections and set up an adequate course of treatment. The frequency of subsequent medical examinations depends on the clinical stage of the disease and the detainee's CD4 count. A detainee in clinical stage 3 of the disease and with a CD4 count exceeding 500 cells/mm³ must be examined by a doctor every twenty-four weeks, while a detainee in clinical stage 3 of the disease with a CD4 count lower than 500 cells/mm³ must be examined by a doctor every twelve weeks. 76 .     Order no. 474, on Standard medical assistance to persons infected with HIV, issued by the Ministry of Health and Social Development on 9   July 2007, provides that a person infected with HIV must be subjected to the following tests and examinations in particular, irrespective of the clinical stage of the disease: -     abdominal ultrasound scan twice a year; -     electrocardiography twice a year; -     chest photofluorography once or twice a year; -     a general blood test three or four times a year; -     a general urine test once a year; -     psychology consultation six times a year; -     HIV RNA (viral load) test twice a year; -     CD4 test four times a year. III.     RELEVANT INTERNATIONAL MATERIALS 77 .     World Health Organization (“WHO”) guidelines of 2006 “Antiretroviral therapy for HIV infection in adults and adolescents: recommendations for a public health approach” read as follows: “ 4.2.     Immunological assessment of HIV-infected adults and adolescents The optimum time to commence ART [antiretroviral therapy] is before patients become unwell or present with their first opportunistic infection. Immunological monitoring (CD4 testing) is the ideal way to approach this situation. A baseline CD4 cell count not only guides the decision on when to initiate ART but is also essential if CD4 counts are to be used to monitor ART. Table 3 summarizes the immunological criteria for the initiation of ART. Table 3.     CD4 criteria for the initiation of ART in adults and adolescents CD4 (cells/mm 3 ) Treatment recommendation <200 Treat irrespective of clinical stage 200-350 Consider treatment and initiate before CD4 count drops below 200 cells/mm 3 >350 Do not initiate treatment ... The benchmark threshold marking a substantially increased risk of clinical disease progression is a CD4 cell count of 200 cells/mm 3 . Although it is never too late to initiate ART, patients should preferably begin the therapy before the CD4 cell count drops to or below 200 cells/ mm 3 . The optimum time to initiate ART with a CD4 cell count of 200−350 cells/mm 3 is unknown. Patients with CD4 cell counts in this range require regular clinical and immunological evaluation. The treatment of patients with WHO clinical stage 4 disease should not depend on a CD4 cell count determination: all such patients should initiate ART. For WHO clinical stage 3 conditions, a threshold of 350 cells/ mm 3 has been identified as a level below which functional immune deficiency is present and ART should be considered... For patients with clinical stage 1 or 2 disease, a CD4 count below 200   cells/mm 3 is a clear indication for treatment. Although there are no randomized trial data on the CD4 cell count level at which to start therapy in asymptomatic persons, data from a number of cohorts have been consistent in demonstrating that disease progression is greater in persons who start antiretroviral therapy with CD4 counts below 200 cells/mm 3 than in those starting therapy above this level. In general these studies have not been able to detect a difference in outcome between persons who start therapy at CD4 counts of 200−350 cells/mm 3 and those who do so at CD4 counts above 350 cells/mm 3 . However, if the CD4 count is above 350 cells/mm 3 , ART should be delayed... Table 4.     Recommendations for initiating ART in adults and adolescents in accordance with clinical stages and the availability of immunological markers WHO clinical staging CD4 testing not available CD4 testing available 1 Do not treat Treat if CD4 count is below 200 cells/mm 3 2 Do not treat 3 Treat Consider treatment if CD4 count is below 350 cells/mm 3 and initiate ART before CD4 count drops below 200 cells/mm 3 4 Treat Treat irrespective of CD4 count ... 4.3.     Virological assessment of HIV-infected adults and adolescents Plasma viral load measurement is not necessary before initiating ART. It rarely informs the clinical decision as to when ART should begin if both CD4 testing and the assessment of clinical staging are performed... 13.     Considerations in hepatitis B or hepatitis C coinfection ... In the setting of HIV infection the course of HCV [hepatitis C]-associated liver disease is accelerated. Rates of progression of liver disease in HIV/HCV coinfection are greater. ... there is contradictory evidence on the effects of HCV on HIV disease progression. In the Swiss cohort study the presence of HCV was independently associated with an increased risk of progression to AIDS and death. However, the EuroSIDA cohort analysis found that the overall virological and immunological responses to ART were not affected by HCV serostatus... However, the risk of mortality related to liver disease was markedly increased in HCV-seropositive patients... Irrespective of whether a patient has HIV infection, the optimal treatment for hepatitis C virus infection is pegylated interferon alpha and ribavirin (RBV)... The initiation of ART in HIV/HCV-coinfected patients should follow the same principles and recommendations as for the initiation of ART in HIV-monoinfected patients. However, the patients should be followed up more closely because of the major risk of drug-related hepatotoxicity and for specific drug interactions of some ARVs with anti-HCV drugs... In patients with high CD4 cell counts it is preferable to treat HCV infection before HIV. While concurrent treatment of both infections is feasible, it may be complicated by pill burden ..., drug toxicities and drug interactions. In patients who need ART it may be preferable to initiate ART and delay HCV therapy in order to obtain better anti-HCV response rates after immune recovery... 15.     Clinical and laboratory monitoring ... Clinical and laboratory monitoring of HIV-infected patients serves two purposes. Firstly, for patients under care who are not yet eligible for ART, regular monitoring is essential for the identification of the point at which they become eligible for ART or for prophylaxis against opportunistic infections... Well-designed monitoring protocols can facilitate the initiation of [opportunistic infections] prophylaxis and ART in the majority of HIV-infected patients before they develop advanced HIV infection. Secondly, once patients have been initiated on ART, regular monitoring is necessary to assess efficacy, manage side-effects and identify treatment failure... Because resources are limited, laboratory testing should generally be directed by signs and symptoms and should be done only when the results can be used to guide management decisions. Exceptions are the recommendations to obtain a CD4 cell count every six months... 15.2.     Monitoring of patients who are not yet eligible for ART Patients who are not yet eligible for ART should be monitored for clinical progression and by CD4 count measurement every six months. Clinical evaluation should include the same parameters as are used in baseline evaluations, including weight gain or loss and development of clinical signs and symptoms of progressive HIV disease. These clinical parameters and the CD4 cell count should be used to update the WHO disease stage at each visit and to determine whether patients have become eligible for [opportunistic infections] prophylaxis or ART. Clinical evaluation and CD4 counts can be obtained more frequently as the clinical or immunological threshold for initiating ART approaches (Table 4)...” 78.     On 30 November 2009 WHO published a document entitled “Rapid Advice: Antiretroviral Therapy for HIV Infection in Adults and Adolescents”. It revised the previous recommendations concerning the commencement of antiretroviral treatment contained in the 2006 guidelines. It strongly recommended that antiretroviral treatment be started in all patients with HIV who had a CD4 count lower than 350 cells per mm 3 irrespective of clinical symptoms. It stressed the necessity of CD4 testing in identifying whether HIV-positive patients at WHO clinical stage   1   or   2 of the disease needed to start antiretroviral treatment. Furthermore, it strongly recommended that antiretroviral treatment be started in all patients with HIV at WHO clinical stage 3 or 4 irrespective of CD4 count. 79.     The same recommendations are contained in the WHO's 2010 guidelines “Antiretroviral therapy for HIV infection in adults and adolescents: recommendations for a public health approach”. THE LAW I.     ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION IN RELATION TO THE CONDITIONS OF THE APPLICANT'S DETENTION 80.     The applicant complained that the conditions of his detention in remand centre no. IZ-71/1 in Tula had been in breach of Article 3 of the Convention. Relying on Article 13 of the Convention, he claimed that no domestic remedy had been available to him in order to obtain an improvement in the conditions of detention. The relevant Articles provide: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.     Submissions by the parties 1.     The Government 81.     The Government submitted, firstly, that the applicant had had effective domestic remedies at his disposal and that he had failed to exhaust them. In particular, he could have complained about the conditions of his detention to a prosecutor. They referred to improvements in the conditions of detention which had been made in response to complaints lodged with the prosecutor's office by Mr N., Mr D., Mr Sh. and Mr Z. (a medical unit had been created, medicines purchased and maintenance work carried out). A prosecutor also had competence to open criminal proceedings against those responsible and his refusal to open such proceedings could be challenged before a court. In the alternative, it was open to the applicant to bring a court action in tort. To prove the effectiveness of that remedy, they cited the case of Shilbergs v. Russia (no. 20075/03, 17 December 2009), where the domestic courts had awarded adequate compensation to a detainee held in inhuman conditions. They also submitted copies of two judgments awarding Mr D. and Mr R. compensation for non-pecuniary damage. Mr D. had been awarded 25,000 Russian roubles (RUB) for detention in overcrowded cells, while Mr R. had been granted RUB   300,000 for incompetent medical assistance resulting in blindness. They also referred to two more domestic judgments by which Mr S. and Mr M. had been awarded monetary compensation for inadequate conditions of detention. 82.     The Government conceded that the applicant's cells had been overcrowded. They argued, however, that inmates spent substantial periods of time outside the cells. In particular, they participated in the investigative measures, had meetings with the investigator and counsel, had family visits, were taken daily to the exercise yard and regularly to the shower room. They also had an opportunity to pray in specially-designed premises or work in production workshops. They could also obtain psychological consultation. The conditions of the applicant's detention had therefore been satisfactory and in compliance with the requirements of Article 3. 2.     The applicant 83.     The applicant argued that he did not have effective remedies for his complaint about the appalling conditions of detention. He referred to the case of Benediktov v. Russia (no. 106/02, 10 May 2007), where the Court had found a violation of Article 13 on account of the absence in Russia of an effective remedy in respect of inhuman and degrading conditions of detention. He also cited the cases of Kalashnikov v. Russia ((dec.), no.   47095/99, 18 September 2001), Moiseyev v. Russia ((dec.), no.   62936/00, 9 December 2004) and Mamedova v. Russia (no. 7064/05, §   57, 1 June 2006), where the Court had noted that the problems arising from the conditions of the applicants' detention had apparently been of a structural nature, for which no effective domestic remedy had been shown to exist. In the applicant's opinion, the Government had not put forward any argument capable of calling the above findings into question. The rare examples cited by the Government of redress being obtained by a detainee through an application to the domestic authorities were exceptions to the general rule. 84.     The applicant submitted that he had complained about the inhuman conditions of detention to the supervising prosecutor during his regular inspection tours of the remand centre. The prosecutor had therefore been aware of the appalling conditions in the remand centre. However, no attempts to redress the situation had been made and all complaints had remained unanswered. An action in tort was also ineffective. In the absence of statutory criteria for the evaluation of non-pecuniary damage sustained through detention in inhuman conditions or of established case-law of the domestic courts in that sphere, the outcome of such action would be unpredictable. The applicant also stated that on several occasions he had attempted to send complaints about the inhuman conditions of detention to the prosecutor of the Tula region, the ombudsman and the head of the penitentiary department of the Tula region. Those complaints had however been intercepted by the remand centre management, the applicant had been threatened with reprisals and had been placed in a punishment cell (see paragraphs 25 and 26 above). 85.     Further, the applicant challenged the Government's description of conditions in remand centre no. IZ-71/1 as factually untrue. In actual fact the cells had been smaller and the number of inmates per cell had been greater than suggested by the Government. Inmates had in fact had between 0.5 and 1.7 sq. m of personal space. However, even assuming that the Government's account of the cell measurements and the number of inmates in the cells had been correct, the overcrowding was still so severe that the applicant had only had between 1.9 and 3.5 sq. m of personal space. Given that he had been held in these appallingly overcrowded conditions for more than a year and two months, that factor amounted in itself to inhuman treatment. The cells had moreover been dark, cold, stuffy, smoky and infested with parasites. Toilet facilities had been filthy and foul smelling and offered no privacy. The applicant had not always had a bed for himself. The bedding had been dirty and ragged and had to be shared by several inmates. The food had been of extremely poor quality. 86.     The applicant also submitted that he had been confined to his cell day and night, save for the days when he had been transported to the courthouse for a hearing. However, the conditions of transport had been even more appalling than the living conditions in the cells. 87.     Finally, the applicant argued that his situation was exacerbated still further by the fact that he suffered from HIV. As a result of overcrowding and poor sanitary conditions he had run a high risk of contracting various infectious diseases, such as tuberculosis and scabies. His health had deteriorated and he had started to suffer from various ailments, such as colds, headaches, abdominal pains, depressions and deteriorating eyesight. B.     The Court's assessment 1.     Admissibility 88.     The Government raised the objection of non-exhaustion of domestic remedies by the applicant. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant's complaint that he did not have at his disposal an effective remedy for complaining about the inhuman and degrading conditions of his detention. Thus, the Court finds it necessary to join the Government's objection to the merits of the applicant's complaint under Article 13 of the Convention. 89.     The Court further notes that the applicant's complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2.     Merits (a)     Article 13 of the Convention 90.     The Court reiterates that Article   13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article