FIFTH SECTION
CASE OF
IVAKHNENKO v. RUSSIA
(Application no.
12622/04)
JUDGMENT
STRASBOURG
4 April 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Ivakhnenko v. Russia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Helena Jäderblom,
Aleš Pejchal,
Dmitry Dedov, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
12622/04) 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 Aleksandr Sergeyevich Ivakhnenko
(“the applicant”), on 2 March 2004.
The applicant, who had been granted legal aid,
was represented by Mr P. Finogenov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by G. Matyushkin,
Representative of the Russian Federation at the European Court of Human Rights.
On 21 October 2008 the application was declared
partly inadmissible and the complaints concerning an alleged lack of adequate
medical assistance and the conditions of the applicant’s detention were
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Mr Aleksandr Sergeevich
Ivakhnenko, is a Russian national who was born in 1960.
A. Conditions of the applicant’s detention in remand
prison IZ-36/1 in Voronezh
On 8 August 2002 the applicant was arrested. On
30 June 2003 a jury found him guilty of murder and rape; the Voronezh Regional Court sentenced him to twenty-one years’ imprisonment. On 22 December 2003
the Supreme Court of the Russian Federation upheld the conviction with minor
changes.
From 16 August 2002 until 23 January 2004 the
applicant was held in remand prison IZ-36/1 in Voronezh.
The parties submitted
the following information on the characteristics of the cells in which the
applicant had been detained:
|
Cell
number
|
Cell
measurements
(sq. m)
|
Number
of beds
|
Number
of inmates
|
|
|
Government
|
Applicant
|
Government
|
Applicant
|
Government
|
Applicant
|
|
28
|
30
|
38
|
7
|
18
|
7
|
22
|
|
33
|
30
|
38
|
7
|
18
|
7
|
10
|
|
80
|
7
|
13
|
1
|
4
|
1
|
4
|
|
81
|
7
|
13
|
1
|
2
|
1
|
2
|
|
86
|
29
|
38
|
7
|
14
|
7
|
29
|
|
95
|
28
|
38
|
7
|
14
|
7
|
20
|
|
122
|
28
|
39
|
6
|
12
|
6
|
25
|
|
132
|
27
|
39
|
6
|
12
|
6
|
18
|
The Government submitted that the number of
detainees “had not exceeded the number of sleeping places”. In support of their
submissions, they enclosed certificates signed by the prison governor and
wardens on 12 December 2008. The Government also submitted two reports of 26 February
2006 and 5 April 2007, according to which the relevant prison documentation (including
the prison population registers covering the period up to 2 August 2003) had
been destroyed due to the expiry of the storage time-limits.
The applicant produced a copy
of a letter from the Astrakhan Regional prosecutor’s office dated 24 October
2005 in response to his complaint about the conditions of detention, in which the
prosecutor acknowledged, in particular, the existing overcrowding in the cells
in IZ-36/1 and indicated that he had requested the prison governor to
remedy the breach of the domestic legal requirements on the conditions of
detention.
B. The applicant’s state of health and medical
assistance
1. The applicant’s account
In October 2002 the applicant had trouble
urinating and was diagnosed with prostatitis. He was told that he needed surgery;
however it was not possible to perform it in pre-trial detention. The applicant
was given injections and medicines that his relatives provided. The applicant
produced a medical certificate of 30 November 2005 from the prison doctor
confirming the diagnosis.
In August 2002 the applicant hurt his wrist. The
wrist was bandaged and the applicant was given an ointment. The swelling went
down. During transport to the correctional colony on 23 January 2004 the
applicant hurt his wrist once again. He asked to be examined by a doctor. On 29
March 2004 an X-ray revealed a triple contracture of this wrist, and the
applicant received treatment in the prison hospital, but the wrist mobility could
not be restored.
The applicant complained to the Prosecutor’s
Office that he had not had the necessary medical care. In his reply of 24
October 2005, the prosecutor informed the applicant that surgery on his wrist
and adenoma were considered unnecessary.
2. The Government’s account
The Government
submitted the applicant’s medical records from IZ-36/1 and his current
place of imprisonment.
On admission to the Voronezh remand prison following
his arrest on 19 August 2002, the applicant underwent a comprehensive examination.
He did not make any complaints concerning his health. The following diagnosis
was noted in the medical record: “varicosity of the lower limbs,
encephalopathy, and flexion contracture of the right wrist”. The applicant
underwent a urine test.
During his detention in IZ-36/1 remand prison the
applicant contracted an allergic dermatitis and an abscess in his right
buttock. Each time prison doctors gave him medication and the applicant felt
better.
When he arrived at the correctional colony on 23
January 2004, the applicant did not make any complaints concerning his health.
A medical examination confirmed the previous diagnosis of varicosity of the
lower limbs.
On 17 May 2004 the applicant was examined by a
prison doctor for his urination problem. The doctor noted in the applicant’s
medical record: “prostatitis?”, and recommended consultation with a urologist.
On 20 May 2004 a surgeon from the Voronezh Regional Prison Hospital examined the applicant and recommended him a further
examination in the Regional Prison Hospital.
On 11 June 2004 the applicant was transferred to
the Voronezh Regional Prison Hospital. There the flexion contracture of the
right wrist was confirmed and the applicant was prescribed out-patient
treatment. The applicant had undergone some blood and urine tests. No
prostatitis was diagnosed.
On 4 August 2004 the applicant was examined by
the prison doctor who did not confirm a suspicion of the prostatitis.
On 9 January 2005 the applicant was examined by
a prison doctor regarding his problems with urination. The doctor noted in the
applicant’s medical record: “urethritis?”, and ordered some blood and urine
tests.
On 10 January 2005 the results of the tests were
within the normal limits and the diagnosis was not confirmed.
On 24 August 2006 the applicant was examined by
the prison doctor. He did not have any particular urination complaints.
The Government - referring to the medical
summary of 12 December 2008 prepared by the prison doctor - submitted that
the applicant’s state of health did not require any surgical intervention on
the adenoma, as he did not have any, or the wrist.
II. RELEVANT DOMESTIC LAW
For a summary of the relevant domestic and
international law provisions governing the conditions of pre-trial detention
and the health care of detainees, see the cases of Ananyev and Others v.
Russia, nos. 42525/07 and 60800/08, §§ 25-58, 10 January 2012, and Yevgeniy
Alekseyenko v. Russia, no. 41833/04, §§ 60-64 and 73-80, 27
January 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTIONON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION
The applicant complained that the conditions of
his detention in remand prison IZ-36/1 from August 2002 to January 2004 had
been in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Government submitted that the conditions of the
applicant’s detention had been compatible with the requirements of Russian law
and Article 3 of the Convention.
The applicant submitted that the cells had been
severely overcrowded and that the Voronezh prosecutor had acknowledged the existing
overcrowding problem. He did not have an individual sleeping place, which
indicated a violation of Article 3 of the Convention. In addition, he suffered
from extreme cold and heat because the mandatory ventilation and heating systems
did not function, and from a lack of privacy when using the toilet.
The Court considers that it does not need to
establish the truthfulness of each and every allegation, since it finds a
violation of Article 3 on the basis of the evidence that have been presented or
is undisputed by the Government, for the following reasons.
The Court observes that in certain instances the
respondent Government alone have access to information capable of firmly
corroborating or refuting allegations under Article 3 of the Convention and
that a failure on a Government’s part to submit such information without a satisfactory
explanation may give rise to the drawing of inferences as to the
well-foundedness of the applicant’s allegations (see Ahmet Özkan and Others
v. Turkey, no. 21689/93, § 426, 6 April 2004). Thus, the first issue to be
examined is whether on the basis of the facts of the present case the
Government’s failure to submit copies of the relevant prison documentation has
been properly accounted for.
In this connection, the Court would note that
the destruction of the relevant documents due to expiry of the time-limit for
their storage, albeit regrettable, cannot in itself be regarded as an
unsatisfactory explanation for the failure to submit the relevant documents (see
Shcherbakov v. Russia, no. 23939/02,
§ 77, 17 June 2010). The archived documents containing that information
were destroyed due to the expiry of the storage time-limits on 26 February 2006
and 5 April 2007, that is, one or two years before 27 October 2008, which
is the date on which the case was communicated to the respondent Government. However,
the documents destroyed included the prison population registers covering the
period until 2 August 2003. The Government did not claim that the registers
covering the period of the applicant’s detention after 2 August 2003 and until
24 January 2004 had been also destroyed. These registers
could have been an important and reliable piece of evidence but the Government
did not account for their failure to produce them to the Court.
As to the certificates and statements from the
prison governor and warders which were all drafted in
2008, the Court has pointed out on many occasions that documents
prepared after a considerable period of time cannot be viewed as sufficiently
reliable sources, given the length of time that has elapsed (see Novinskiy
v. Russia, no. 11982/02, § 105, 10 February 2009). Finally, the Court notes
that the information in the certificates was undermined by the finding
contained in the cotemporaneous letter from the Voronezh prosecutor who
admitted a general overcrowding problem in that remand prison in October 2005
(see paragraph 9 above).
Having regard to the Government’s failure to
submit the original documents for the period after 2 August 2003, to the
applicant’s detailed description of his conditions of detention and to the
finding of the regional prosecutor, the Court finds that at the material time
the remand prison was overcrowded. The overcrowding in Russian remand prisons
has been a matter of particular concern to the Court (see Ananyev and
Others v. Russia, cited above). In a great number of cases, the Court has
consistently found a violation of the applicants’ rights on account of a lack
of sufficient personal space during their pre-trial detention. The present case
is no exception in this respect. Having regard to the above, the Court
considers the applicant’s allegations concerning the overcrowding of the remand
prison to be credible.
The Court has found in many previous cases that
where the applicants had at their disposal less than three square metres of
floor surface, the overcrowding was considered to have been so severe as to
justify in itself a finding of a violation of Article 3 (see Starokadomskiy
v. Russia, no. 42239/02, § 43, 31 July 2008; Svetlana Kazmina
v. Russia, no. 8609/04, § 70, 2 December 2010; Lind
v. Russia, no. 25664/05, § 59, 6 December 2007; Labzov
v. Russia, no. 62208/00, § 44, 16 June 2005; and Mayzit
v. Russia, no. 63378/00, § 40, 20 January 2005).
There has therefore been a violation of
Article 3 of the Convention on account of the applicant’s conditions of
detention in remand prison IZ-36/1 in Voronezh from 16 August 2002 until
23 January 2004, which the Court considers to have been inhuman and degrading treatment
within the meaning of that provision.
II. ALLEGED VIOLATION OF ARTICLE 3 ON ACCOUNT OF
QUALITY OF MEDICAL ASSISTANCE IN DETENTION
The applicant further complained under Article 3
of the Convention that he had not been provided with adequate medical
assistance in the detention.
A. Submissions
by the parties
The Government put forward two lines of
argument, insisting that the applicant, who had had a choice of effective
remedies before him, had not exhausted them and, at the same time, arguing that
the treatment provided to the applicant during the entire period of his
detention corresponded to the standards. As to the first argument, the
Government stressed that the applicant had not complained to a court that he
was not receiving adequate medical assistance. The Government stressed that his
complaint under Article 3 should therefore be dismissed for failure to exhaust
domestic remedies.
In the alternative, the Government argued that
the applicant had been provided with adequate care, irrespective of the type of
detention facility in which he had been held. He had received medical
assistance appropriate to his condition. He had been regularly examined by the prison
doctor as well as by specialist doctors, had undergone the necessary medical
examinations, such as X-rays and blood and urine tests, and had received
treatment. His state of health had been monitored by the medical staff and had
remained satisfactory during his entire stay in the detention centre. The
doctors had reacted without delay to all of his complaints and symptoms by
providing adequate treatment. The medical personnel possessed the necessary
training and skills to treat the applicant. The facilities were equipped with
medicines and medical equipment according to established norms. They also
stressed that his current condition was considered satisfactory and that he had
never been diagnosed with prostatitis.
The applicant maintained his claims.
B. The Court’s assessment
1. Exhaustion of domestic remedies
The Government claimed that the applicant had
failed to bring his grievances to the attention of the national courts and
considered that his complaint should be rejected for failure to comply with the
requirements of Article 35 § 3 of the Convention.
As to this Government’s argument, the Court
reiterates its earlier finding that, at present, the Russian legal system does
not offer an effective remedy for the alleged violation or its continuation
which could provide the applicant with adequate and sufficient redress for the
allegedly inadequate medical assistance in the detention. Accordingly, the
Court dismisses the Government’s objection as to the non-exhaustion of domestic
remedies (see Dirdizov v. Russia, no. 41461/10, §§ 80-90,
27 November 2012) in respect of this part of the application.
2. General principles related to medical assistance in
detention
The Court reiterates that although Article 3 of
the Convention cannot be construed as laying down a general obligation to
release detainees on health grounds, it nonetheless imposes an obligation on
the State to protect the physical well-being of persons deprived of their
liberty by, among other things, providing them with the requisite medical assistance (see Khudobin
v. Russia, no. 59696/00, § 93, ECHR 2006-XII). The Court has
held on many occasions that the lack of appropriate medical care may amount to
treatment contrary to Article 3 (see, for example, Wenerski
v. Poland, no. 44369/02, §§ 56 to 65, 20 January 2009).
The “adequacy” of medical assistance remains the most
difficult element to determine. The Court insists that, in particular,
authorities must ensure that diagnosis and care are prompt and accurate (see Hummatov
v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007,
and Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010), and that, where necessitated by the nature
of a medical condition, supervision is regular and systematic and involves a
comprehensive therapeutic strategy aimed at adequately treating the detainee’s
health problems or preventing their aggravation (see Hummatov, cited above,
§§ 109, 114).
On the whole, the Court reserves a fair degree
of flexibility in defining the required standard of health care, deciding it on
a case-by-case basis. That standard should be “compatible with the human
dignity” of a detainee, but should also take into account “the practical
demands of imprisonment” (see Aleksanyan
v. Russia, no. 46468/06, § 140, 22 December 2008).
3. Application of the above principles to the present
case
The medical records show that the applicant was
examined by a doctor immediately after his arrest and he did not have any
particular complaints. During the entire period of his detention in the Voronezh remand prison and colony the applicant regularly sought, and obtained, medical
attention. His medical record shows that each time he was unwell he was
examined by a doctor and was prescribed treatment which had its effect. There
is no reason to believe that the treatment administered to him was inadequate.
The applicant was also regularly examined by
specialists, including by an urologist and surgeon immediately after the prison
authorities had been notified of the visiting doctor’s opinion that the
applicant might suffer from prostatitis. Basing on the results of examination
in the Regional Prison Hospital, the prison doctor found no indication of prostatitis.
As regards the certificate of 30 November 2005 provided by the applicant which mentioned
“prostatitis”, that diagnosis subsequently found no corroboration in any other
medical papers.
As to the flexion contracture of the right wrist,
the applicant was prescribed out-patient supervision, and the allegations of
the applicant about necessity of the surgical treatment are also
unsubstantiated.
The Court further notes that, whilst the
applicant disputed the adequacy of his treatment as a whole, he did not provide
any medical opinion confirming his point of view.
Given that the applicant’s health was monitored
by medical professionals and that he received regular treatment, the Court
considers that during the entire period of his detention the applicant was
provided with the requisite medical assistance.
As regards the applicant’s complaint concerning
an alleged lack of medicines in detention facilities, the Court reiterates that
the unavailability of necessary medicines may only raise an issue under Article
3 if it has negative effects on the applicant’s state of health or causes
suffering of certain intensity (see Mirilashvili v. Russia (dec.), no. 6293/04, 10 July 2007). The applicant failed to explain how he had been
affected by the alleged shortage of medicines in the correctional colony, and
the Court cannot conclude that his state of health was affected by a lack of
certain medicines in the colony to the extent that caused him suffering
reaching the level of severity to amount to inhuman or degrading treatment.
It follows from the above that this complaint is
manifestly ill-founded and must be rejected in accordance with Article 35
§§ 3 a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant claimed 10,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that his claims were
excessive.
The Court accepts that the applicant suffered
distress and frustration which cannot be compensated for solely by the finding
of a violation. Making its assessment on an equitable basis, the Court awards
the applicant EUR 6,250 in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaint
concerning the conditions of the applicant’s detention admissible and, by a
majority, the remainder of the application inadmissible;
2. Holds unanimously that there has been a
violation of Article 3 of the Convention on account of the conditions of the
applicant’s detention;
3. Holds unanimously
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR 6,250
(six thousand two hundred and fifty euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
