The author of the communication is Rakhilakhan Bizurukova, a citizen of Kyrgyzstan, born in 1948. She claims that the State party has violated the rights of her deceased husband, Mamataziz Bizurukov, a national of Kyrgyzstan also born in 1948, under article 6 (1), read alone and in conjunction with article 2 (3), and articles 10 (1) and 14 of the Covenant. The author is represented by counsel.
Facts as submitted by the author
On 9 July 2011, the author’s husband was transferred from a temporary detention facility to pretrial detention facility No. 5 (SIZO No. 5) in Osh, Kyrgyzstan. Upon arrival at SIZO No. 5, Mr. Bizurukov underwent a medical examination, as he was complaining of pain in his kidneys and urinary tract. He was diagnosed with benign prostatic hyperplasia. Mr. Bizurukov was prescribed medication, which was purchased and delivered by his family, however it did not help to improve his condition.
On 14 July 2011, human rights defenders from a local non-governmental organization (NGO), who had earlier visited Mr. Bizurukov in SIZO No. 5, informed the head of the detention facility about Mr. Bizurukov’s condition and requested that he be hospitalized.
On 19 July 2011, the Osh Regional Ombudsperson visited Mr. Bizurukov and requested that the SIZO administration provide detailed information about his health, including the treatment he was receiving. On 22 July 2011, the Ombudsperson of Kyrgyzstan also requested that the head of SIZO No. 5 provide the same information.
Since the medical ward at SIZO No. 5 lacked the necessary specialists and equipment for his examination, on 21 July 2011 Mr. Bizurukov underwent a medical examination in a city hospital. Upon examination, the urologist recommended that Mr. Bizurukov undergo surgery to remove a prostate adenoma. However, the urologist’s recommendations were ignored by the head of the prison medical ward, Ms. I. On 31 August 2011, Mr. Bizurukov complained to Ms. I. that he had been unable to urinate for several days. Ms. I. gave him an analgesic and a diuretic without assessing his physical condition or calling a urologist for a consultation. Instead of being put in a medical ward for further monitoring and treatment, Mr. Bizurukov was returned to his cell.
Mr. Bizurukov told his son, who was detained with him in SIZO No. 5, that he was not able to urinate and that the prison doctors were not taking any action to help him. Mr. Bizurukov’s son asked his mother to bring him a urinary catheter, which he received on 31 August 2011. He immediately asked the guards to take him and Mr. Bizurukov to the showers and once there, applied the catheter and emptied Mr. Bizurukov’s bladder. According to Mr. Bizurukov’s son, first there was a purulent bloody discharge that was followed by urine. Once Mr. Bizurukov was able to empty his bladder, his condition immediately improved.
After dinner on 1 September 2011, Mr. Bizurukov felt pain in the epigastric area. He started having breathing problems, then fell unconscious on his bed and foam appeared in his mouth. At 11.03 p.m. an ambulance arrived at SIZO No. 5 and, after examining Mr. Bizurukov, the paramedics stated that he had died from ventricular fibrillation.
On 3 September 2011, the Osh Regional Ombudsperson and representatives of the Office for the Protection of Patients’ Rights and the NGO Kylym Shamy conducted an investigation into Mr. Bizurukov’s death and concluded that he had suffered from chronic prostatitis, for which he had been receiving treatment before his incarceration. It was determined that at the time of his detention, Mr. Bizurukov had been diagnosed with a prostate adenoma, grade 2–3, and chronic pyelonephritis.
On 5 September 2011, the NGO Kylym Shamy submitted a complaint to the Office of the Prosecutor General, requesting a criminal investigation into Mr. Bizurukov’s death.
On 12 September 2011, the head of SIZO No. 5 completed an internal investigation into Mr. Bizurukov’s death, which determined that even though Mr. Bizurukov had received inadequate medical treatment at SIZO, namely that Ms. I. had not implemented the urologist’s recommendation (para. 2.4 above), it was not a direct cause of his death.
On 22 September 2011, Kylym Shamy received a letter informing it that on 10 September 2011, the Investigative Department of the State Penitentiary Service had opened a criminal investigation into Ms. I in relation to Mr. Bizurukov’s death.
On 9 November 2011, the State Penitentiary Service completed its investigation into Mr. Bizurukov’s death, in which it determined that Ms. I.’s actions constituted professional negligence that led to the victim’s death because she had failed to provide him with proper medical care, including by not assessing his heart function, which could have prevented the worsening of his condition.
On 29 December 2011, the Osh City Court acquitted Ms. I. of all charges due to the lack of corpus delicti. The court determined that, in accordance with the results of the forensic medical examination, dated 21 September 2011, Mr. Bizurukov had died from acute myocardial infarction, which had developed independently from the benign prostatic hyperplasia that Mr. Bizurukov had complained about earlier, and had no connection with the treatment he had received. The forensic medical examination also determined that Mr. Bizurukov had suffered from chronic coronary heart disease.
On 1 March 2012, the Osh Regional Court denied the author’s appeal and upheld the verdict of the Osh City Court.
On 16 April 2012, the author submitted a request for a supervisory appeal to the Supreme Court. On 18 April 2012, the Office of the Prosecutor responsible for the oversight of detention facilities also submitted a request for a supervisory review, asking the Supreme Court to quash the decisions of the Osh City and Regional Courts. In its request, the Office of the Prosecutor noted that Ms. I. had failed to provide medical assistance to Mr. Bizurukov, despite his numerous complaints, including twice on 31 August 2011, as a result of which his son had to operate a urinary catheter on Mr. Bizurukov himself, even though it was initially given to Ms. I. by Mr. Bizurukov’s wife. The Office of the Prosecutor referred to the internal investigation conducted by the State Penitentiary Service, in which it had concluded that, considering Mr. Bizurukov’s age and medical complaints, he should have been checked for coronary heart disease and undergone electrocardiography and kidney blood tests. Also, in accordance with internal regulations, in the absence of the necessary medical facilities at SIZO No. 5, Ms. I. should have requested the head of the detention facility to transfer Mr. Bizurukov to an appropriate hospital.
On 8 August 2012, the Supreme Court quashed the decisions of the Osh City and Regional Courts and sent the case back to the Osh City Court for a new trial by a different judge. The Supreme Court determined that the lower courts had not given proper consideration to some of the evidence presented during the trial, including the results of the investigation by the State Penitentiary Service.
On 29 October 2012, Ms. I was found guilty by the Osh City Court of improper performance of professional duties (professional negligence) resulting in the victim’s death, and received a two-year suspended sentence. The court largely based its decision on the conclusions of the two internal investigations into Mr. Bizurukov’s death. On 5 February 2013, the Osh Regional Court upheld the trial court verdict.
On 7 May 2013, after Ms. I.’s request for a supervisory review, the Supreme Court quashed the decisions of the Osh City and Regional Courts and found Ms. I. not guilty of all charges. The Supreme Court held that there was insufficient evidence to prove that Ms. I. was responsible for the death of Mr. Bizurukov and that the latter had never complained about having heart problems. The Court concluded that the medical treatment received by Mr. Bizurukov at SIZO No. 5 had not led to ventricular fibrillation and that the lower courts had failed to explain why their conclusion deviated from the results of the forensic medical examination dated 21 September 2011 (para. 2.12 above).
The author submits that all available domestic remedies have been exhausted.
Complaint
The author claims that the State party has violated the rights of her husband under article 6 (1), read alone and in conjunction with article 2 (3), and article 10 (1) of the Covenant, due to the failure of the medical personnel of SIZO No. 5 to provide him with proper medical care, which led to his death.
The author also claims a violation of her husband’s rights under article 14 of the Covenant.
State party’s observations on the merits
By note verbale of 17 January 2018, the State party submitted its observations on the merits of the communication. According to the State party, Mr. Bizurukov and his son were detained on 23 June 2011 on charges of murder. On the evening of 1 September 2011, Mr. Bizurukov was transferred from his cell to a medical ward due to a quickly deteriorating health condition, where he later died without regaining consciousness.
The State party notes that on 10 September 2011, the State Penitentiary Service opened an investigation into the death of Mr. Bizurukov in relation to the actions of the staff of the SIZO No. 5 medical ward. On 10 November 2011, the head of the medical ward, Ms. I., was charged with improper performance of professional duties, resulting in the victim’s death. After several judicial proceedings, on 7 May 2013, Ms. I. was acquitted of all charges by the Supreme Court.
The State party also notes that on 24 June 2011, the Osh Regional Prosecutor’s Office received a complaint from the lawyer retained by Mr. Bizurukov and his son that they had been subjected to torture by investigators of the Osh Regional Police Department. On 27 June 2011, Mr. Bizurukov and his son underwent a forensic medical examination, which revealed that they had not suffered any physical injuries. Mr. Bizurukov and his son themselves later denied having been subjected to any beatings by the police.
Author’s comments on the State party’s observations on the merits
On 11 June 2018, the author submitted her comments on the State party’s observations. She noted that the State party had not addressed her claims in its observations. She also noted that since 2013, the State party had not taken any steps to identify the people responsible for her husband’s death in detention. According to the author, the State party did not start investigating Mr. Bizurukov’s death until the Osh Regional Ombudsperson, representatives of the Office for the Protection of Patients’ Rights and Kylym Shamy conducted their own investigation and forwarded its results to the State Penitentiary Service. Only after an internal investigation by the State Penitentiary Service, did the authorities open a criminal investigation into Mr. Bizurukov’s death.
The author submits that, despite Mr. Bizurukov’s complaints and the urologist’s recommendations for surgery, the administration of SIZO No. 5 did not take any action to protect his health. He was left unattended by the medical staff between 9 and 21 July and then again between 11 and 31 August 2011, and the only person who was caring for him during these times was his son, who was detained with him in the same facility. Despite Mr. Bizurukov’s repeated complaints on 31 August 2011 and his request for a urinary catheter to empty his bladder, Ms. I., who initially received the catheter from Bizurukov’s family, simply gave it to his son and left. The author notes that the internal investigation conducted by the State Penitentiary Service concluded that Mr. Bizurukov should have been checked for coronary heart disease and undergone electrocardiography and kidney blood tests. In addition, if the medical facilities at SIZO No. 5 were not adequate for his treatment, he should have been transferred to a hospital.
The author notes that, despite the apparent failure of the prison officials responsible for the health care of detainees to provide such care, the Supreme Court issued a decision that contradicted its own previous decision in the same case. According to the author, by detaining her husband, the State party had the responsibility to care for his life and it was up to the State party to be aware of his state of health.
Considerations of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee notes the author’s claim that she has exhausted all available legal domestic remedies. In the absence of any objection by the State party in that connection, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol, from examining the communication.
The Committee notes the author’s claim under article 6 (1), read in conjunction with article 2 (3), of the Covenant that (a) the State party did not start investigating Mr. Bizurukov’s death until the Osh Regional Ombudsperson, representatives of the Office for the Protection of Patients’ Rights and an NGO Kylym Shamy conducted their own investigation, of which the results were then forwarded to the State Penitentiary Service, and (b) the State party has not taken any steps to identify the people responsible for her husband’s death in detention. The Committee notes the State party’s submission that after the death of the author’s husband on 1 September 2011, the State Penitentiary Service opened an investigation into the actions of the staff of the SIZO No. 5 medical ward on 10 September 2011 in relation to the death of Mr. Bizurukov. The Committee observes that the State party identified Ms. I. as the person responsible for Mr. Bizurukov’s medical care and proceeded with her prosecution for professional malpractice. Accordingly, the Committee concludes that the author has not sufficiently substantiated her claim under article 6 (1), read in conjunction with article 2 (3), of the Covenant for the purposes of admissibility, and therefore finds it inadmissible under article 2 of the Optional Protocol.
The Committee also takes note of the author’s claims under article 14 of the Covenant. The Committee considers that the author has failed to sufficiently substantiate those allegations, for the purposes of admissibility, and finds them inadmissible under article 2 of the Optional Protocol.
In the Committee’s view, the author has sufficiently substantiated her claims under articles 6 (1) and 10 (1) of the Covenant, for the purposes of admissibility. It, therefore, declares those claims admissible and proceeds with its consideration of the merits.
Considerations of the merits
The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.
The Committee must determine whether the State party violated its obligations regarding articles 6 (1) and 10 (1) of the Covenant in connection with the death of Mr. Bizurukov, as a result of inadequate medical treatment. The Committee notes the author’s claim that on 9 July 2011, her husband was transferred from a temporary detention facility to SIZO No. 5 in Osh, where he was detained until his death on 1 September 2011. It notes that from the day he arrived at SIZO No. 5 and until the day prior to his death, Mr. Bizurukov complained to the medical staff at SIZO No. 5 about his health, namely about pain in his kidneys and urinary tract, and difficulties with urinating. The Committee observes that between 9 July and 1 September 2011, Mr. Bizurukov only once saw a urologist, who diagnosed benign prostatic hyperplasia and recommended that he underwent surgery to remove a prostate adenoma. The Committee also notes that despite his condition, Mr. Bizurukov was left largely unattended by the medical personnel at SIZO No. 5, and was cared mostly for by his son (who was also detained there), including when he had to apply a urinary catheter to empty Mr. Bizurukov’s bladder after the latter had been unable to urinate for several days. The Committee also notes the State party’s submission that the State Penitentiary Service conducted a criminal investigation into the death of Mr. Bizurukov and that the head of the medical ward was acquitted of all charges by the Supreme Court.
The Committee affirms that it is incumbent on States to ensure the right to life of detainees and not incumbent on the latter to request protection.4 States parties have a heightened duty of care to take any necessary measures to protect the lives of individuals deprived of their liberty by the State, since by arresting, detaining, imprisoning, or otherwise depriving individuals of their liberty, States parties assume the responsibility to care for their lives and bodily integrity, and they may not rely on lack of financial resources or other logistical problems to reduce this responsibility.5 The Committee observes, from documents submitted to it by the author, that the forensic medical examination determined that Mr. Bizurukov had suffered from chronic coronary heart disease. However, the Committee notes that this was not known to the medical personnel of SIZO No. 5, because he never complained about having heart problems and, as determined by the State Penitentiary Service in its investigation, because he was not examined for any heart ailments, despite his age and other health complaints. It is up to the State party to know about the state of health of detainees in State detention facilities, as far as may be reasonably expected.6 The Committee is of the view that considering Mr. Bizurukov’s overall health and age and the seriousness of his complaints, a properly functioning medical service within SIZO No. 5 could and should have provided him with regular monitoring and the necessary medical care to prevent the sudden deterioration in his health.7 Accordingly, it considers that the State party failed to take appropriate measures to protect Mr. Bizurukov’s life during the period he spent in SIZO No. 5 and violated his rights under article 6 (1) of the Covenant
With regard to the author’s claim under article 10 (1) of the Covenant, the Committee recalls that treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule.8 They may not be subjected to any hardship or constraint, other than that resulting from the deprivation of liberty; they must be treated humanely in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners.9 In accordance with the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, health personnel, particularly physicians, charged with the medical care of prisoners and detainees, have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained.10 The Committee notes that the State party has not contested the information provided by the author on the conditions of Mr. Bizurukov’s detention, nor has it provided any information concerning the treatment received by him during his incarceration. In those circumstances, the Committee considers that due weight must be given to the author’s allegations and finds a violation of Mr. Bizurukov’s rights under article 10 (1) of the Covenant.
The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it discloses a violation by the State party of the author’s husband’s rights under articles 6 (1) and 10 (1) of the Covenant.
In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. That requires it to make full reparation to individuals whose Covenant rights have been violated. In the present case, the State party is obligated to provide adequate compensation to the author for the violations suffered by her deceased husband. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.