CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 novembre 2012

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     FIRST SECTION             CASE OF KORYAK v. RUSSIA   (Application no. 24677/10)             JUDGMENT     STRASBOURG   13   November 2012     FINAL   13/02/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Koryak v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 23 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 24677/10) 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 Igor Vyacheslavovich Koryak (“the applicant”), on 17 February 2010. Following the applicant’s death on 29   December 2011, his mother, Mrs Yevdokiya Iosifovna Koryak, informed the Court of her wish to pursue the application originally introduced by her son. 2.     The applicant, and later Mrs Koryak, were represented by Mr   S.   Kiryukhin, a lawyer practising in Orsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had not received adequate medical attention while in detention and that, following a refusal to release him on parole despite his extremely poor health, his subsequent detention had amounted to inhuman treatment. 4.     On 18 March 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Further to the applicant’s request, the Court granted priority to the application (Rule 41 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1961 and lived before his arrest in the city of Orsk, Orenburg Region. At the time of application he was serving a sentence in correctional colony no. 5 in the village of Maksay in the Orenburg Region. A.     Criminal proceedings against the applicant 6.     On 20 April 2004 the Oktyabrskiy District Court of Orsk found the applicant guilty of murder committed in a drunken rage and sentenced him to ten years’ imprisonment. The judgment was upheld on appeal by the Orenburg Regional Court and became final. The applicant’s sentence was to come to an end on 25   November 2013. B.     Applicant’s state of health 7.     The Government provided the Court with a copy of the applicant’s medical records, written by hand and recording his condition from the first days of his detention. They also submitted a typed version of the same records to facilitate the Court’s task of deciphering the doctors’ handwriting. At the same time, given very serious discrepancies between the two versions, with vast pieces of the handwritten version missing from its typed copy and a selective approach in copying the specific wording from the handwritten version to the typed one, the Court will only base its findings on the handwritten version of the applicant’s medical records. 8.     As is evident from the records, the applicant had suffered from tuberculosis since 1981. The treatment that he had received in a civil hospital was successful, leading to his clinical recovery from the illness. According to the Government, in 1997 the applicant became an injecting heroin user. 9.     Upon his detention in temporary detention facility no. IZ-56/2 in the Orenburg Region following his arrest on 26 November 2003, the applicant was placed on a register of inmates in need of close supervision in relation to his chronic illnesses and, given his history with drugs, his blood was taken for testing for the presence of infections, including HIV. On the basis of the test results, which were received in January 2004, the applicant was diagnosed with HIV. When informing the applicant that he had contracted HIV, the prison doctor served him with a memo explaining the results of the test and describing various aspects of the infection, its assessment, treatment, ways of transmission and precautions to be taken in everyday life to avoid the spread of the infection. The applicant’s medical records show that the doctors concluded that the applicant was suffering from clinical stage 2 HIV infection. 10.     In December 2003 the applicant complained to a prison tuberculosis specialist of fatigue, pain in the epigastrium, a high temperature and loss of weight. The specialist observed the applicant, having noted his “satisfactory state” and bubbling crackles and wheezing in his right lung. The diagnosis was clinical recovery from pulmonary tuberculosis. No treatment or medical procedures were prescribed. 11.     During a subsequent examination by the tuberculosis specialist on 9   February 2004 the applicant again complained of fatigue and excessive sweating. The specialist concluded that the applicant had significant residual changes after pulmonary tuberculosis and prescribed him an antibacterial drug to treat an active form of tuberculosis and a special food regimen. On the following day the applicant was seen by an infectious diseases specialist, who confirmed the diagnosis of stage 2 HIV infection. The specialist noted the need to closely supervise the applicant in his medical records. 12.     Following the examinations on 9 and 10 February 2004, the applicant was not seen either by tuberculosis or HIV specialists in the temporary detention facility. On admission to correctional colony no. 5 in July 2004 the applicant was included on the list of detainees in need of close medical supervision. Between July 2004 and June 2005 the medical assistance provided to the applicant concentrated on dealing with his drug withdrawal symptoms and a leg injury. On 21 June 2005 a colony doctor noted the applicant’s history of suffering from tuberculosis and stage 2B   HIV infection in his medical records and observed that the applicant had not reported any health complaints pertaining to the two illnesses. A medical observation of the applicant in August 2005, in response to his complaints of fatigue, did not reveal any problems with his lungs. A month later the applicant was examined by a tuberculosis specialist, to whom he complained of general exhaustion, heavy breathing and a short dry cough. Having diagnosed the applicant with chronic bronchitis in remission, the specialist prescribed the applicant treatment and scheduled a chest radiography exam. The results of the exam performed on 26 September 2005 were compared to those of the applicant’s previous radiography tests in November 2004 and April 2003, with no acute pulmonary disease being detected. On the day after the radiography exam, the applicant again repeated his health complaints to the tuberculosis specialist. Having noted no changes in the applicant’s state of health, the specialist authorised his transfer to another colony. 13.     Between 6 October and 9 November 2005 the applicant was again detained in a temporary detention facility in Orenburg, as a temporary measure preceding his transfer to the new correctional colony. The applicant complained to the facility’s doctor of coughing up phlegm and blood and heavy breathing during even slight physical exercise. The doctor noted rough respiration and dry wheezing noises in the applicant’s left lung and ordered a chest X-ray. The order was not followed through. 14.     On 11 November 2005 the applicant arrived at correctional colony no. 5, where he stayed for twelve days until his transfer to a temporary detention facility in Orsk. 15 .     Two days after the applicant’s admission to the Orsk detention facility he was seen by an infectious diseases specialist. Having noted the applicant’s weight loss and his large number of complaints accompanied by demands to initiate treatment, the specialist concluded that the complaints were unfounded, as the applicant did not know what illness he had that required treatment. The record drawn up at that time indicated that the applicant’s HIV infection was now at stage 3. On 13 December 2005 he was sent to prison no. 1 in the Chelyabinsk Region. 16.     Following the applicant’s admission to the prison, a prison doctor paid him a visit. After a short examination, the doctor was satisfied with the applicant’s state of health, and in particular the absence of any wheezing noises during breathing. Another medical examination was performed on 26   February 2006 by a prison medical assistant during the applicant’s detention in the prison punishment ward. As the assistant recorded in the medical records, the applicant complained about the conditions of his detention in the ward and demanded “particular attention” and “expensive treatment” against the HIV infection, as well as to be seen by an infectious disease specialist and not by a medical assistant. The assistant further noted that a visual examination of the applicant had not led to the discovery of any clinical manifestation of the HIV infection and that the prison did not employ an infectious diseases specialist. At the same time, the assistant reiterated that a tuberculosis specialist, a surgeon, a prison medical assistant and the head of the medical unit had already examined the applicant. A chest X-ray exam performed on 21 March 2006 showed large calcined foci in the upper lung lobes on both sides. 17.     Between 1 March and 12 May 2006 the applicant was examined by prison doctors or medical assistants on a number of occasions, each time either prior to his placement in or during his detention in the prison punishment ward. Each time his latent stage HIV was noted in his medical records. No negative changes pertaining to his history of tuberculosis were recorded. On 3 April 2006 the applicant was seen by a psychiatrist, on whose recommendation he underwent treatment in a psychiatric hospital between 15 May and 11 June 2006. On the day following the applicant’s admission to the psychiatric hospital he was subjected to a chest X-ray exam which discovered pulmonary fibrosis and dense nidi in the upper lobes of the lungs. The applicant’s subsequent medical examinations after his return from the hospital were devoted to solving his psychological problems and treating skin illnesses. The doctors continued recording his history of tuberculosis and his infection with HIV, observing no negative changes pertaining to the two infections and not scheduling any medical procedures linked to the two illnesses. 18 .     On 24 February 2007 the applicant was transferred to colony no. 5. He was immediately examined by an infectious diseases specialist who, having recorded the applicant’s weight loss and his suffering from herpes on the chest since December 2006, confirmed the progression of the HIV infection to stage 4B with associated secondary illnesses. During a subsequent examination by the same specialist the applicant complained of asthenia, a high temperature and a cough. A diagnosis of an acute respiratory viral infection led to the prescription of a cough medicine, vitamins and paracetamol. On a number of occasions the applicant had consultations with a surgeon, a psychiatrist and the head of the colony medical unit in respect of his psychological problems and an old leg injury. Once every two months he was seen by an infectious diseases specialist who, having recorded the progress of the HIV infection each time, prescribed multivitamins for the applicant. The Court observes that the progress of the illness was recorded in the handwritten version of the medical records, while the typed version does not contain that entry. 19 .     In July 2007, as is stated in the copy of the handwritten version of the medical records, the applicant was detained together with an inmate suffering from an active form of tuberculosis. As a result of a medical examination on 27 July 2007 it was decided to place the applicant under close anti-tuberculosis supervision, to start treating him with tubazid, an anti-tuberculosis medicine based on isoniazid, and to test his phlegm for the presence of bacteria. There is no indication that the applicant was provided with the medicine. The test was only performed in October 2007 following the applicant making another series of health complaints. 20 .     Following the applicant again coming into contact with an inmate suffering from an active form of tuberculosis, as once again was recorded in the handwritten version of the applicant’s medical records, and given his continuing health complaints, on 15   November 2007 the prison doctor repeated her decision to closely observe the applicant, to treat him with an anti-bacterial medicine and to perform microbiological tests on his phlegm. Again, no indication was given in the medical records whether the instructions were complied with. 21.     The applicant was not subjected to any medical examinations or procedures between 15 November 2007 and 2 April 2008, when he was consulted by a psychiatrist. A subsequent examination by a prison doctor on 8 May 2008 was carried out in respect of the applicant’s complaints of fatigue, a sore throat and a high temperature. The diagnosis was an acute viral infection, for which treatment was prescribed. However, the doctor scheduled a chest X-ray, which was performed on 19 May 2008 and revealed dense nidi and infiltration in the applicant’s lungs. The final diagnosis was infiltrative tuberculosis of the left lung. The applicant was transferred to the correctional colony’s tuberculosis hospital. 22.     On 6 June 2008 an infectious diseases specialist examined the applicant, for the first time following the discovery of the reactivation of the tuberculosis infection. Having recorded a long list of the applicant’s health complaints, he noted the following diagnosis in the medical records: stage 4B HIV infection, progressing as a result of the absence of antiretroviral therapy, and infiltrative tuberculosis of the upper lobe of the left lung. Biochemical and viral blood tests were scheduled. On the following day the applicant started receiving treatment with four antibacterial medicines. His medical records contain a note of his full compliance with the medical recommendations. As a result of a subsequent examination by the specialist on 24 June 2008, the applicant was prescribed a specific food regimen. The specialist also noted that the applicant was taking hepatoprotective medicines. Another examination carried out more than a month later did not lead to any additional recommendations or prescriptions being made. 23 .     Given the applicant’s strict compliance with the intensive chemotherapy regimen for his anti-tuberculosis treatment, on 20 August 2008 the doctors noted positive signs, with an X-ray exam revealing disintegration of the tuberculosis infiltration. The applicant was to continue the intensive phase of the treatment. According to the Government, on two occasions, in June and August 2008, the applicant was offered antiretroviral therapy, which he refused without any explanation. At the same time, the medical records show that the applicant continuously complained of nausea, fatigue and a generally poor condition during the intensive stage of his anti ‑ tuberculosis treatment. 24.     In October 2008, following the completion of the intensive phase of the treatment, the applicant underwent bacteriological tests which showed that he was no longer smear positive. The continuation phase of the therapy commenced. Between October 2008 and February 2009 the applicant was examined at least once every two weeks. His complaints were recorded and addressed, various tests were performed and his treatment was adjusted to take account of the test results. The applicant’s condition was considered to be satisfactory. 25.     A bacteriological test on 6 February 2009 showed negative changes in the applicant’s condition and led to a recommendation that the applicant be seen by an infectious diseases specialist. The specialist’s recommendation was that he immediately commence antiretroviral therapy. On 12 February 2009 the applicant started taking combivir and stocrin. 26.     The applicant continued complaining of poor health, with the prison doctors noting each time that his condition was satisfactory. Only after an X-ray exam and a series of bacteriological tests in April 2009 showed the progress of the applicant’s tuberculosis was his treatment changed and he was again assigned the intensive chemotherapy regimen. 27.     In May 2009, with the exams revealing a drastic progression of the applicant’s tuberculosis, the doctors noted the ineffectiveness of the applicant’s treatment but decided to continue with it. At the same time, they scheduled the applicant for a forensic medical examination. The applicant’s medical check-ups became a daily matter. With his condition continuing to deteriorate the doctors introduced painkillers to his chemotherapy regimen. In July 2009 the chemotherapy regimen was once again changed with a number of additional medicines being introduced. The applicant was sent for a chest radiography examination, clinical blood analyses and sputum culture testing. The tests revealed various intensive foci in the applicant’s left lung within the zone of destruction and showed that the applicant was smear positive. 28.     The final diagnosis recorded in the applicant’s medical records in July 2009 was as follows: “an illness caused by the human immunodeficiency virus (HIV) at stage 4B [with associated] secondary illnesses in the form of a systematic infection (AIDS) while antiretroviral therapy [is being] provided. Candidiasis of the oral cavity. Cachexia of the first degree. Infiltrative tuberculosis of the upper lobe of the left lung in the disintegration phase. [Presence] of the mycobacterium tuberculosis (+). Low degree anaemia.” The doctors decided to prepare documents to seek the applicant’s early release given his very serious condition. 29.     Between July and September 2009 the applicant was examined once a week, with the exams revealing no positive changes. Tests showed that the applicant had started developing resistance to at least three major anti ‑ tuberculosis drugs. Given the absence of any reserve anti-bacterial drugs in the hospital, it was recommended that he continue with the initial treatment despite the negative treatment response. According to the Government, the applicant was offered a transfer “to a specialised medical facility” but he declined the offer. At the same time, the medical records contain a number of entries showing the applicant’s full compliance with the treatment. 30 .     In the beginning of November 2009 the applicant was transferred to temporary detention facility no. IZ-56/2, where he stayed until his return to the tuberculosis hospital in correctional colony no. 5 on 1 December 2009. The anti-tuberculosis treatment was maintained during the applicant’s time in the temporary detention facility on the colony doctors’ recommendation. The following entry was made in his medical records upon admission to the temporary detention facility: stage 4B HIV infection, progressing as a result of the absence of antiretroviral therapy. The Government provided the Court with a handwritten certificate issued in the temporary detention facility. The certificate listed two antiretroviral drugs among the medicines administered to the applicant during his detention in that facility. One of the antiretroviral medicines (kaletra) mentioned in the certificate was introduced to the applicant’s chemotherapy regimen later in the course of treatment, when his illness had progressed to a new stage (see paragraph 35 below). 31.     After the applicant’s return to the tuberculosis hospital, the doctors continued with the same regimen of medical check-ups and chemotherapy with no positive changes in his state being recorded. The doctors’ actions included regular blood and sputum smear tests, general medical examinations and recommendations to continue the intensive phase of the anti-tuberculosis and antiretroviral therapy. 32.     In January 2010, having noted the applicant’s suffering from clinical stage 4 HIV (AIDS) with the progressive deterioration of his condition despite the antiretroviral therapy, the doctors noted in his medical records that any request for his early release had to be lodged before a local court. On 29 January 2010 a medical panel comprising a number of specialists examined the applicant and prepared a report, having observed that his condition was extremely serious despite the intensive medical treatment. They also noted that the applicant had fully complied with the doctors’ recommendations and had regularly followed the treatment. The commission concluded that the applicant’s HIV infection had progressed to stage 4C under the medical classification scheme and that his suffering from an active form of tuberculosis was burdened by his having developed multiple drug-resistances. The commission’s report served as the basis for the petition for the applicant’s release. A subsequent entry in the applicant’s medical records made in March 2010 recorded the court’s refusal to authorise the release. 33.     The doctors went on with the same regimen of examinations and chemotherapy in respect of the applicant’s tuberculosis and AIDS. Their offer to transfer the applicant to another “specialised” tuberculosis hospital was allegedly again declined by him. 34.     In August 2010 the prison medical staff made another attempt at obtaining the applicant’s early release on health grounds. Their motion was dismissed by a court on 26 August 2010. 35 .     Following a further serious deterioration of the applicant’s health, with his HIV infection having progressed and the applicant having been diagnosed with tuberculoma, in September 2010 his doctors changed his treatment. They prescribed new antiretroviral drugs, having replaced stocrin with kaletra. In the end of November 2010 the applicant started receiving reserve anti-tuberculosis drugs under an extremely intensive chemotherapy regimen, with the drugs being administered through injections (amongst other methods). 36.     In their memorandum lodged on 22 July 2011 the Government submitted that the changes to the chemotherapy regimen and the regular medical supervision, including frequent medical check-ups and clinical testing since November 2010, had led to the applicant’s condition having stabilised. While no positive signs in terms of the applicant’s state of health had been recorded, his condition was considered satisfactory.   The Government further observed that on 12 May 2011 a medical panel from the tuberculosis prison hospital had examined the applicant and had concluded that his condition no longer warranted a request for his release on parole. C.     Requests for release on parole 1.     Request in 2009 37 .     Given the rapid deterioration of his health and fearing for his life, the applicant applied to the Novotroitsk Town Court, seeking his release on parole. In particular, the applicant argued that his illnesses made his further detention inhuman, causing him immense suffering and, therefore, warranting his early release. 38.     The colony administration objected to the applicant’s early release, arguing that he had frequently violated the established rules of detention in the colony and had persistently refused to work. On 7 April 2005, by a decision of the colony governor, he was declared to be a persistent offender and ordered to serve the remainder of his sentence in the strictest conditions. In September 2005, by a decision of the Novotroitsk Town Court, he was transferred to a prison for a year. The applicant, however, continued to refuse to take part in educational activities and did not show willingness to reform. 39.     On 25 September 2009 the Novotroitsk Town Court dismissed the applicant’s request, having found as follows: “Having examined the applicant’s arguments, having studied the materials in the case file, having heard a representative of colony no. 5... and a prosecutor who petitioned for the dismissal of [the applicant’s] request for release on parole on medical grounds, having reviewed the materials of [the applicant’s] prison record, having heard a doctor from colony no. 5 who [stated] that [the applicant] suffers from an illness which is included on the list of illnesses serving as a ground for release on parole, [and having considered] that [the applicant has] violated the detention rules on ninety-six occasions and that [those violations] did not expire or were not lifted, the court finds that [the applicant’s] request should be dismissed on the following grounds: [the applicant] suffers from an illness which is included in the list of illnesses serving as a ground for early release on medical grounds, but the court takes into account that during his detention [the applicant has] committed ninety-six violations of the detention rules which were not lifted and which did not expire. By a decision of 7 April 2005 of the colony governor [the applicant] was declared a persistent offender... By a decision of 12 July 2005 of the head of the wing [the applicant] was ordered to serve the remainder of his sentence in the strictest conditions of detention. By a decision of the Novotroitsk Town Court of 5 September 2005 he was transferred to a prison for a year. He does not take part in educational activities in his wing; [he] does not make any positive contributions; and [he] is characterised in a negative way. The remaining period of the sentence still to be served by [the applicant] amounts to more than four years. The court therefore considers that [the applicant] cannot be released on parole.” 40.     On 24 November 2009 the Orenburg Regional Court upheld the judgment on appeal, having entirely endorsed the Town Court’s reasoning. The Regional Court also concluded that the applicant was detained in a penal facility which was well-equipped to provide him with the necessary medical assistance. 2.     Request in March 2010 41 .     In March 2010 the applicant, joined by the medical panel of the colony hospital, filed another request for his early release, arguing that his condition was extremely serious and had continued to deteriorate. Having examined the applicant’s behaviour while serving his sentence, on 17 March 2010 the Novotroitsk Town Court dismissed the request. It once again concluded that there was no evidence that he had reformed. At the same time, the Town Court took into account the quality of the medical assistance afforded to the applicant in the penal facility, having held, in particular, as follows: “The serious form of [the applicant’s] illness has been discovered while serving his sentence; the cause of his illness was his having used drugs through contaminated syringes since 1997. Immediately after his illness was discovered, treatment was initiated in conjunction with [the applicant’s] isolation from society. The medical assistance provided to [the applicant] corresponds to the level of medical assistance provided in the Russian Federation and has been fully provided to him. Inmates detained in the [facility’s] hospital are provided with a proper, balanced food regimen, which [the applicant] does not dispute. The deterioration of [the applicant’s] health at the present time has been caused by the need to treat him with reserve medicines, which is only possible in another specialised medical facility which is situated in another penal facility. Until the present court hearing [the applicant] has not agreed to his transfer to that facility. [The applicant] is infectious and, given his state of health, presents a danger to those around him. Therefore, his treatment at home is impossible, as he needs to be treated as an inpatient in a hospital.” The Town Court also noted that, should the applicant’s state of health continue to deteriorate, he still had the opportunity to lodge another request for release. 42.     The judgment became final on 13 April 2010 when the Orenburg Regional Court upheld it on appeal. 3.     Request in August 2010 43 .     Another request for a release lodged by the applicant in August 2010 was dismissed by the Novotroitsk Town Court on 26 August 2010 with reasoning similar to that employed by the court in its two previous decisions on the same matter. The judgment was upheld on appeal on 7 October 2010. D.     Applicant’s death 44.     On 11 April 2012 the Court received a letter from the applicant’s lawyer informing it of the applicant’s death on 29 December 2011 and expressing his mother’s intention to pursue the application introduced by her son. A power of authority signed by the applicant’s mother entitling the lawyer to represent her interests before the Court and death certificate no. 094938 dated 30 December 2011 were enclosed with the letter. The death certificate indicated that the applicant had not been married. It also indicated that he had died from an illness. Heart failure was indicated as the cause of death. II.     RELEVANT DOMESTIC LAW A.     Provisions governing the quality of medical care afforded to detainees 45. The relevant provisions of domestic and international law governing the health care of detainees, including those suffering from HIV and tuberculosis, are set out in the following judgments: A.B. v. Russia , no.   1439/06, §§ 77-84, 14   October 2010; Yevgeniy Alekseyenko v. Russia , no.   41833/04, §§ 60-66 and 73-80, 27 January 2011; and Pakhomov v.   Russia , no. 44917/08, §§ 33-39 and 42-48, 30 September 2011. B.     Provisions establishing legal avenues for complaints about the quality of medical assistance 1.     Prosecutors Act (Federal Law no.   2202-1 of 17 January 1992) 46.     The list of prosecutors’ official powers includes the rights to enter premises, to receive and study materials and documents, to summon officials and private individuals for questioning, to examine and review complaints and petitions containing information on alleged violations of individual rights and freedoms, to explain the avenues of protection for those rights and freedoms, to review compliance with legal norms, to institute administrative proceedings against officials, to issue warnings about the unacceptability of violations and to issue reports pertaining to the remedying of violations uncovered (sections 22 and 27). 47.     A prosecutor’s report pertaining to the remedying of violations uncovered is served on an official or a body, which has to examine the report without delay. Within a month specific measures aimed at the elimination of the violation(s) should be taken. The prosecutor should be informed of the measures taken (section 24). 48 .     Chapter 4 governs prosecutors’ competence to review compliance with legal norms by the prison authorities. They are competent to verify that prisoners’ placement in custody is lawful and that their rights and obligations are respected, as well as to oversee the conditions of their detention (section   32). To that end, prosecutors may visit detention facilities at any time, talk to detainees and study their prison records, require the prison administration to ensure respect for the rights of detainees, obtain statements from officials and institute administrative proceedings (section   33). Decisions and requests by a prosecutor must be unconditionally enforced by the prison authorities (section 34). 2.     Code of Civil Procedure: Complaints about unlawful decisions 49 .     Chapter 25 sets out the procedure for the judicial review of complaints about decisions, acts or omissions of the State and municipal authorities and officials. Pursuant to Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation, complaints by suspects, defendants and convicts of inappropriate conditions of detention must be examined in accordance with the provisions of Chapter 25 (point   7). 50.     A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the directly higher official or authority (Article 254). The complaint may concern any decision, act or omission which has violated rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on the citizen (Article 255). 51.     The complaint must be lodged within three months of the date on which the citizen learnt of the breach of his rights. The time period may be extended for valid reasons (Article 256). The complaint must be examined within ten days; if necessary, in the absence of the respondent authority or official (Article 257). 52.     The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. If necessary, the court may obtain evidence of its own initiative (point 20 of Ruling no.   2). 53.     If the court finds the complaint justified, it issues a decision requiring the authority or official to fully remedy the breach of the citizen’s rights (Article 258 § 1). The court determines the time-limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full (point 28 of Ruling no.   2). 54 .     The decision is dispatched to the head of the authority concerned, to the official concerned or to their superiors, within three days of its entry into force. The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt (Article 258 §§ 2 and 3). 3.     Civil Code 55.     Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article   1064 §§   1, 2). 56.     State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069). Irrespective of any fault by State officials, the State or regional treasury are liable for damage sustained by a citizen on account of: (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure; and (iii) unlawful administrative punishment (Article 1070). 57.     Compensation for non-pecuniary damage is effected in accordance with Article 151 of the Civil Code and is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated if the damage was caused: (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment: or (iii) through dissemination of information which was damaging to the victim’s honour, dignity or reputation (Article   1100). THE LAW I.     PRELIMINARY CONSIDERATIONS: THE LOCUS STANDI OF THE APPLICANT’S MOTHER 58.     The Court must first address the issue of Mrs Koryak’s entitlement to pursue the application originally introduced by the applicant. It reiterates that on 11 April 2012 the applicant’s lawyer submitted that the applicant had died on 29 December 2011 and that his mother (the applicant’s heir) wished to take his place in the proceedings before the Court. 59.     The Government submitted that the application should be struck out of the list of cases pursuant to Article 37 § 1 of the Convention, as the applicant’s complaint of inadequate medical assistance was closely linked to the person of the applicant and did not seem to raise issues of general interest. They insisted that a further examination of the applicant’s claims would therefore be unreasonable. 60.   The Court has previously taken into account similar requests (see, for example, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII, and Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 189-192, 3 October 2008), having considered whether or not the persons wishing to pursue the proceedings were the applicant’s close relatives (see Thévenon v. France (dec.), no. 2476/ 02, ECHR 2006-III, and Scherer v. Switzerland , 25 March 1994, §§ 31-32, Series A no. 287) and whether the rights concerned were transferable. It has continued the examination of cases involving pecuniary claims that were transferable to the deceased applicant’s heirs (see, for example, Ahmet Sadık v. Greece , 15 November 1996, § 26, Reports of Judgments and Decisions 1996 ‑ V). On the other hand, the Court has applied a much more restrictive approach to other rights, having held that if a right was eminently personal, it was therefore of a non-transferable nature (see, with further references, Vääri v. Estonia (dec.), no. 8702/04, 8 July 2008, and Angelov and   Angelova v. Bulgaria (dec.), no. 16510/06, 7   December 2010). 61 .     The Court has also considered whether the case concerned involved an important question of general interest transcending the person and the interests of the applicant (see Karner v. Austria , no. 40016/98, §§ 25-27, ECHR 2003 ‑ IX; Marie ‑ Louise Loyen and Bruneel v. France , no. 55929/00, § 29, 5 July 2005; and Biç and Others v. Turkey , no. 55955/00, § 23, 2   February 2006). 62.     Turning to the present case, the Court observes that Mrs Koryak wished to continue the application lodged by her son. Thus, the first condition of close kinship is met. However, the application mainly concerned issues falling under Article 3 of the Convention, which are closely linked to the person of the original applicant. In this respect, the Court reiterates its position that a next-of-kin or heir may continue with an application if he or she has legitimate or sufficient interest in the case. For instance, in the case of Jėčius v. Lithuania (no. 34578/97, § 41, ECHR   2000 ‑ IX) it stated as follows: “... where an applicant dies during the examination of a case concerning the unlawfulness of his detention, his heirs or next of kin may in principle pursue the application on his behalf (see, among other authorities, Krempovskij v. Lithuania (dec.), no. 37193/97, 20 April 1999, unreported). The Court considers, like the Commission, that the applicant’s widow has a legitimate interest in pursuing the application in his stead.” 63.     The Court has been even more inclined to allow the next-of-kin to continue proceedings before it after the death of the direct victim in cases brought under Article 2 or 3 of the Convention, having stated that these Convention provisions protect the fundamental values of every democratic society and having taken into account the “particular situation governed by the nature of the violation alleged...” (see, among other authorities, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 200, ECHR   2009; see also Khadzhialiyev and Others v. Russia , no. 3013/04, §   114, 6 November 2008, as regards Article 3 claims). 64.     The Court’s position in those cases is intertwined with the criterion “of general interest” (see paragraph 61 above). It once again reiterates that the existence of other persons to whom a claim could be transferred is an important criterion, but is not the only one for the Court to take into consideration when deciding whether to continue with the case. As the Court pointed out in Malhous (decision cited above), human rights cases before the Court generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant’s death should be continued. This aspect of a case is all the more important, as in the present case, if the main issue raised by the case transcends the person and the interests of the applicant. 65.     The Court has repeatedly stated that its “judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties” (see Ireland v. the   United   Kingdom , 18 January 1978, § 154, Series A no. 25, and Guzzardi v. Italy , 6   November 1980, § 86, Series A no. 39). Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States (see Karner, cited above, § 26). 66.     The Court considers that the subject matter of the present application – the standard and quality of medical assistance for a seriously ill detainee, who had suffered from two diseases plaguing Russian detention facilities, HIV and tuberculosis, coupled with an issue of exhaustion of domestic remedies under Russian law – involves an important question of general inte