THIRD SECTION

CASE OF YUNZEL v. RUSSIA

(Application no. 60627/09)

JUDGMENT

STRASBOURG

13 December 2016

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 Yunzel v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Luis López Guerra, President,
	Helena Jäderblom,
	Helen Keller,
	Dmitry Dedov,
	Branko Lubarda,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 22 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 60627/09) 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 Nikolay Yuryevich Yunzel (“the applicant”), on 10 November 2009.
2.  The applicant was represented by Ms D. Pavlova, a lawyer practising in Naberezhnyye Chelny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  The applicant alleged, in particular, that the conditions of his pre-trial detention had been inhuman and degrading, and that he had not been provided with effective medical care in detention.
4.  On 21 December 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1967 and until his arrest lived in Menzelinsk, the Tatarstan Republic.
6.  In 1999 he was convicted and sent to serve his sentence in a correctional colony.
7.  In April 2008 a further set of charges was brought against the applicant. To ensure his participation in the ensuing investigation he was transferred to remand prison no. IZ-16/3 in the Tatarstan Republic (“the remand prison”). On several occasions he was transported to a temporary detention unit at the Naberezhnyye Chelny police station (“the temporary detention unit”).
A.  Conditions of detention
1.  Remand prison
8.  The applicant was detained in the remand prison during several periods between 7 April 2008 and 7 October 2009. At that time he was placed in cells nos. 306, 320 and 512.
9.  According to the applicant, for most of the period of his detention, 184 days between 7 April 2008 and 11 February 2009, he was detained alone in cell no. 512. The cell was in a poor sanitary condition and was infested with vermin. The toilet pan was not separated from the living area. The cell was poorly lit and the ventilation system did not function. Metal shutters on the windows blocked access to natural light and fresh air. The cell was not equipped with either a television set or a radio, and newspapers were not available. In the remaining period, until 7 October 2009, the applicant occupied cells nos. 306 and 320. The bedding in those cells was torn and dirty. The cells had no television set or refrigerator. The quality of food in the remand prison was poor. Throughout the entire period of his detention the applicant was allowed access to the exercise yard, which was dirty and dusty, for only fifty minutes a day.
2.  Temporary detention unit
10.  During several periods between 23 April 2008 and 21 August 2009, amounting to 207 days in total, the applicant was held in the temporary detention unit. This facility was overpopulated and inmates had no access to outdoor exercise.
B.  Medical treatment in detetnion
11.  In October 2008 the applicant complained of toothache to a prison doctor and received painkillers.
12.  As the applicant’s suffering continued, on 22 January 2009 an investigator asked the head of the remand prison to arrange for him to be examined by a dentist. A similar request was submitted by the head of the medical unit on 10 February 2009.
13.  On 19 May 2009 the custodial authorities transported the applicant to a civilian dentist, who diagnosed chronic pulpitis and periodontitis, and provided some treatment. The dental treatment was not completed. Urgent removal of the applicant’s dental crowns and further treatment with a view to fitting a dental prosthesis were strongly advised. According to the dentist, delay in the treatment could lead to grave complications, such as the loss of the chewing function, osteomyelitis and sepsis.
14.  On 25 May 2009 the applicant was taken to a civilian clinic, where a dentist removed his lower dental bridge and one of the problem teeth. The dentist was unable to complete the treatment as the applicant had to be transported back to the detention facility.
15.  In June 2009 the applicant brought a civil claim against the prison authorities, seeking dental treatment as advised by the doctor treating him and compensation for non-pecuniary damage. The Naberezhnyye Chelny Town Court dismissed the claim on 19 August 2009, having found that the applicant had been provided with adequate medical assistance. On 17 September 2009 the Supreme Court of the Tatarstan Republic upheld the judgment on appeal.
16.  Between 24 December 2009 and 16 March 2010 a civilian dentist removed the dental crowns and bridges from twenty-two of the applicant’s teeth, extracted two teeth, and treated and shaped the remaining teeth for the forthcoming dental restoration work. In a letter to the head of the remand prison dated 30 March 2010, the dentist stressed that it was crucial to ensure that the applicant was transported to the clinic in line with the fixed schedule, starting from 13 April 2010. Failure to do so would entail the necessity to start the treatment anew. The dentist also pointed out that the excessively long time the treatment had taken had already caused substantial suffering to the applicant and increased the risk of digestive problems.
17.  Having not been taken to the dentist as recommended, the applicant submitted several requests for the dental treatment, stating that he had lost the ability to chew and in addition to severe teeth pain he started experiencing stomach pain. On 17 June 2010 the authorities gave their approval for the applicant to be transported to the dentist.
18.  According to written statements of the applicant’s inmate dated 1 July 2010, the applicant had been tormented by unbearable pain and could not sleep normally for several months. Owing to the constant pain and the lack of teeth the applicant had to refuse prison food for several days.
19.  In August 2010 the applicant was taken to a dentist who completed the dental restoration.
20.  The applicant complained that throughout the entire period of his dental treatment, when he had been left practically toothless, no alternative soft food had been made available to him.
II.  RELEVANT DOMESTIC LAW
21.  The relevant provisions of domestic and international law on the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015).
22.  The provisions of domestic law establishing the legal avenues for complaints about the quality of medical services are cited in the following judgments: Patranin v. Russia (no. 12983/14, §§ 86-88, 23 July 2015); Reshetnyak v. Russia (no. 56027/10, §§ 35-46, 8 January 2013); Dirdizov v. Russia (no. 41461/10, §§ 47-61, 27 November 2012); and Koryak v. Russia, (no. 24677/10, §§ 46-57, 13 November 2012).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION
23.  The applicant complained that the conditions of his detention in the remand prison and the temporary detention unit had been inhuman and degrading. He referred to 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.  The Government’s unilateral declaration concerning conditions of detention in the temporary detention unit
24.  On 24 July 2013 the Government submitted a unilateral declaration with a view to resolving the issue raised under Article 3 of the Convention in respect of the conditions of the applicant’s detention in the temporary detention unit, which read as follows:
“I [...], the Representative of the Russian Federation to the European Court of Human Rights, hereby declare that the Russian authorities acknowledge that [the applicant], during several periods between 23 April 2008 and 21 August 2009, was detained [in the temporary detention unit] in conditions which did not comply with the requirements of Article 3 of the Convention.
The authorities are ready to pay the applicant a sum of EUR 4,500 as just satisfaction.
The authorities therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as ‘any other reason’ which would justify striking the case out of the Court’s list of cases as referred to in Article 37 § 1 (c) of the Convention.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
25.  The applicant rejected the Government’s offer, insisting on the examination of his complaints.
26.  The Court reiterates that Article 37 § 1 (c) of the Convention enables it to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
27.  The Court also points out that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government, even if the applicant wishes the examination of the case to be continued.
28.  To this end, the Court will examine the declaration carefully in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007; and WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007).
29.  The Court is satisfied that the Government did not dispute this part of the allegations made by the applicant and explicitly acknowledged a breach of Articles 3 of the Convention in respect of the conditions of his detention in the temporary detention unit.
30.  As to the intended redress to be provided to the applicant, the Government have undertaken to pay EUR 4,500 by way of just satisfaction. The Court notes that the proposed sum is not unreasonable in comparison with similar cases (see Cocchiarella v. Italy [GC], no. 64886/01, § 105, ECHR 2006‑V). The Government have committed themselves to effecting payment of that sum within three months of the Court’s decision, with default interest to be payable in the event of a delay in settlement.
31.  The Court has repeatedly found a violation of Article 3 of the Convention on account of inadequate conditions of detention in Russian custodial facilities (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012). It follows that the complaint concerning conditions of detention raised in the present application is based on the clear and extensive case-law of the Court.
32.  The Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of the judgments concerning the same issues. Therefore, the Court is satisfied that respect for human rights, as defined in the Convention (Article 37 § 1 in fine), does not require it to continue the examination of this part of the application. In any event, the Court’s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, this part of the application to its list of cases should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006). The Court thus considers that it is no longer justified to continue the examination of this part of the case.
33.  In view of the above, it is appropriate to strike out of the list the part of the application concerning the inhuman and degrading conditions of the applicant’s detention in the temporary detention unit during several periods between 23 April 2008 and 21 August 2009.
B.  Conditions of detention in the remand prison
1.  The parties’ submissions
34.  The Government argued that the conditions of the applicant’s detention in the remand prison had been satisfactory, as he had been provided with an individual sleeping place, had had sufficient personal space, his cells had been equipped with the necessary furniture and had been in adequate sanitary condition. As regards cells nos. 306 and 320, they were occupied by one to three persons respectively during the periods of the applicant’s detention there.
35.  The applicant argued that the conditions of his detention in that facility, especially in cell no. 512, had been in breach of the requirements of Article 3 of the Convention. His de facto solitary confinement in that cell during lengthy periods of time without access to any sources of information had amounted to inhuman and degrading treatment.
2.  The Court’s assessment
36.  The description of the conditions of detention in cells nos. 306, 320 submitted by the applicant was dissimilar to his description of cell no. 512, and conditions varied significantly from cell to cell (see paragraph 9 above). Consequently, the Court considers that the conditions could not be regarded as a “continuing situation”. The end of the applicant’s stay in cell no. 512 thus triggered a separate six-month time-limit for bringing the complaint before the Court (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 75-78, 10 January 2012).
37.  The Court observes that the complaint under examination was lodged on 10 November 2009, more than six months after the end of the applicant’s detention in cell no. 512 on 11 February 2009. Therefore, it was lodged out of time and must be declared inadmissible in accordance with Article 35 § 1 of the Convention.
38.  As to the conditions of the applicant’s detention in that facility during the remaining period, the Court considers that they did not reach the threshold of severity set by Article 3 of the Convention (see, mutatis mutandis, Khodorkovskiy v. Russia, no. 5829/04, §§ 111-16, 31 May 2011). This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected.
II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE QUALITY OF THE MEDICAL TREATMENT
39.  The applicant complained that the authorities had not taken the necessary steps to safeguard his health and well-being, having failed to provide him with adequate dental treatment, in breach of Article 3 of the Convention, cited above.
A.  The parties’ submissions
40.  The Government put forward two lines of argument.
41.  Firstly, they argued that the claim should be rejected owing to the non-exhaustion of domestic remedies. The applicant should have raised his complaint before the Russian authorities, in particular, before the detention administration and a court, but he had failed to do so.
42.  Secondly, they argued that the applicant had been afforded adequate medical treatment, as the detention authorities on several occasions had arranged for him to be treated by a dentist.
43.  The applicant maintained his complaint, emphasising that during a particular period he had had to suffer pain for several months after the removal of his various dental restoration apparatus. To support this allegation he submitted written statements of his inmate dated 1 July 2010. The applicant also argued that the legal avenues proposed by the Government were ineffective.
B.  The Court’s assessment
1.  Admissibility
44.  In assessing the Government’s argument that the applicant failed to exhaust the available avenues of domestic protection regarding the allegedly inadequate medical treatment, the Court reiterates that it has consistently held that the remedies proposed by the Government do not satisfy the relevant criteria (see Ivko, cited above, §§ 85-88; Khalvash v. Russia, no. 32917/13, §§ 49-52, 15 December 2015; Patranin v. Russia, no. 12983/14, §§ 82-88, 23 July 2015; Koryak v. Russia, no. 24677/10, §§ 82-86, 13 November 2012; and Reshetnyak v. Russia, no. 56027/10, §§ 65-73, 8 January 2013). The Court therefore rejects the Government’s non-exhaustion objection.
45.  The applicant’s complaint under Article 3 is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible.
2.  Merits
(a)  General principles
46.  The applicable general principles were recently summarised in the cases of Blokhin v. Russia [GC] (no. 47152/06, §§ 135-40, ECHR 2016); and Ivko (cited above, §§ 91-95).
(b)  Application of the general principles to the present case
47.  Turning to the quality of the applicant’s dental treatment, the Court observes that the treatment commenced in late May 2009, that is to say seven months after the applicant had complained of severe toothache, and four months after the detention authorities had been alerted to the necessity of ensuring the applicant’s examination by a dentist (see paragraphs 11-13 above). The treatment was interrupted on several occasions owing to the authorities’ failure to arrange for the applicant to be transferred to a dentist (see paragraphs 14 and 16-17 above). As a result he remained for several months in a situation where he was almost unable to chew the food served to him in detention. The Court is mindful of the fact that as confirmed by the applicant’s inmate, in that period the applicant suffered from severe pain syndrome (see paragraph 18 above).
48.  The Court considers that the delays in the applicant’s treatment amounted to a serious shortcoming on the part of the authorities, in particular because it must have been a cause of serious distress for him and put his health in danger (see paragraphs 13, 16 and 18 above). However, neither the documents submitted by the parties, nor the Government’s observations contain any explanation or justification for the authorities’ failure to ensure that the applicant was treated in a timely fashion. Moreover, it appears that no special arrangements, such as providing the applicant with suitable food, were made to alleviate his pain and suffering caused by the absence of teeth.
49.  In the light of the above, the Court considers that the delayed treatment had the effect of exposing the applicant to prolonged mental and physical suffering, and constituted an affront to his human dignity. The authorities’ failure to provide him with the medical care he needed thus amounted to inhuman and degrading treatment for the purposes of Article 3 of the Convention.
50.  Accordingly, there has been a violation of Article 3 of the Convention.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
51.  Lastly, the applicant complained about the conditions of his prison transportation and alleged various breaches of Article 6 § 1 of the Convention during the criminal proceedings against him. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court considers that these grievances do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
52.  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
53.  The applicant claimed 821,900 euros (EUR) in respect of non‑pecuniary damage.
54.  The Government considered that amount to be unsubstantiated and excessive.
55.  The Court accepts that the applicant suffered distress and frustration on account of the authorities’ failure to provide him with the requisite dental care. Having regard to the particular circumstances of the case, the Court, making its assessment on an equitable basis, finds it appropriate to award the applicant EUR 5,250 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
	B.  Costs and expenses
56.  The applicant also claimed EUR 697 for the postal expenses and legal costs incurred before the Court.
57.  The Government did not comment.
58.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full.
	C.  Default interest
59.  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, UNANIMOUSLY,
1.  Decides having regard to the terms of the Government’s declaration and the modalities for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaint under Article 3 of the Convention about the inhuman and degrading conditions of the applicant’s detention in the temporary detention unit for several periods between 23 April 2008 and 21 August 2009;

2.  Declares the complaint concerning the failure of the authorities to provide the applicant with adequate medical treatment in detention admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to provide the applicant with timeous and adequate dental treatment;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 5,250 (five thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 697 (six hundred and ninety-seven euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Luis López Guerra
	Registrar	President