LITVINOV v. RUSSIA - 32863/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 288 (22 March 2016)

In the case of Litvinov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Luis López Guerra, President,

          Helena Jäderblom,
          George Nicolaou,
          Helen Keller,
          Johannes Silvis,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 1 March 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 32863/13) 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 Sergey Borisovich Litvinov (“the applicant”), on 26 April 2013.

2. The applicant was represented by Ms Ye. Mukhina, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had not benefited from adequate medical care whilst in detention, and that he had not had effective avenues through which to complain of a violation of his right to adequate medical treatment.

4. On 1 October 2013 the complaints concerning the lack of effective medical assistance and absence of effective legal remedies in this regard were communicated to the Government and the remainder of the application was declared inadmissible.

5. On the same date, in response to a request from the applicant, the Court granted priority to the application under Rule 41 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1964 and, until his arrest, lived in St Petersburg.

A. Criminal proceedings against the applicant

7. On 26 June 2010 the applicant was arrested on suspicion of aggravated kidnapping and extortion committed within an organised criminal group and with the use of firearms. He remained in detention throughout the investigation and trial.

8. On 22 June 2012 the Leningrad Regional Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment in a high-security correctional colony.

9. The Supreme Court of Russia upheld the sentence on appeal on 8 November 2012.

B. Applicant’s detention, state of health and medical treatment

10. The parties provided the Court with extensive medical evidence, including the applicant’s clinical records, medical certificates, expert reports, and opinions by various medical specialists.

11. The evidence shows that the applicant had a long history of heart and kidney diseases. In 2007 he suffered a stroke, closed craniocerebral injury and cerebral contusion. The following year he suffered a myocardial infarction and was admitted to a hospital for in-patient treatment. A medical examination carried out by the hospital revealed a deterioration in the functioning of his kidney. He was prescribed a basic drug regimen, which was supervised by a cardiologist and a nephrologist. Upon discharge from the hospital, his state of health was considered satisfactory.

12. After the applicant’s arrest he was taken to a temporary detention centre in the town of Vsevolzhk, and six days later, on 2 July 2010, to temporary detention facility no. IZ-47/1 in St Petersburg (“facility no. IZ-47/1”). On admission to the detention facility, the applicant underwent a general medical check-up performed by the prison doctor, who concluded that he was “somatically healthy”. Eleven days later he underwent an electrocardiogram, which revealed hypertrophy of the left ventricle of his heart and myocardium insufficiency. The prison doctor recommended in-patient care.

13. On 16 July 2010 the applicant was transferred from the detention facility to hospital no. 2 of medical ward no. 78 of the Federal Service for the Execution of Sentences (“prison hospital no. 2”). An electrocardiogram and blood and urine tests were performed in the hospital, leading to diagnosis of third-stage hypertension, third-stage arterial hypertension, coronary disease, first-degree angina pectoris, sclerotic kidney, fourth-stage chronic kidney disease, and chronic renal insufficiency of the second degree. He was prescribed drug therapy comprising enalapril, aspirin, spironolactone and other medication.

14. On the day following his admission to the hospital, the applicant made a written refusal to receive injections of hypotensive medication, arguing that they could lead to a sharp drop in his blood pressure.

15. The applicant’s clinical records show that he received drug treatment for hypertension in the hospital. His blood pressure and body temperature were regularly monitored.

16. On 13 August 2010 the applicant was discharged from the hospital and transferred to facility no. IZ-47/1. The discharge certificate indicated that his treatment had not produced the expected results, with the applicant’s arterial blood pressure remaining at a high level. It recommended a consultation with a cardiologist and a nephrologist in order to adjust his treatment.

17. Two months later, on 13 October 2010, the applicant was taken to hospital no. 1 of medical ward no. 78 of the Federal Service for the Execution of Sentences (“prison hospital no. 1”), where he was examined by several doctors, including a cardiologist and a nephrologist. He underwent several medical examinations, which revealed that his angina pectoris had progressed to the third stage. He was also diagnosed with first-degree encephalopathy of mixed genesis. His antihypertensive drugs regimen was adjusted accordingly. The doctors recommended regular monitoring of his blood pressure, creatinine and urea levels. The applicant was certified as having a third-degree disability on 2 December 2010.

18. In December 2010, the applicant’s wife, anticipating his discharge from the hospital, complained to the head of the Regional Department of the Federal Service for Execution of Sentences in St Petersburg and Leningrad Region and to the Investigative Committee of the Leningrad Region that the applicant’s medical treatment had been inadequate and about his impending transfer from the hospital to a temporary detention facility. On 18 January 2011 the Investigative Committee dismissed the complaint. The complaint to the Regional Department of the Federal Service for Execution of Sentences was also unsuccessful.

19. On 3 December 2010 the applicant was sent back to facility no. IZ-47/1. He was seen by a therapist. His treatment continued as prescribed in the hospital.

20. On 14 December 2010 an independent cardiologist, Dr F., chosen by the applicant’s wife, issued a report assessing the quality of the applicant’s treatment in detention. He observed that the applicant’s health, and in particular his heart condition, had deteriorated while in detention. He noted that after the arrest the applicant had not been given medication or appropriate dietary nutrition. Serious emotional conditions aggravated by the incarceration had also contributed to the deterioration of his health and increased the risk of a stroke, fatal heart attack or kidney failure. Dr F. recommended dietary nutrition, basic treatment and regular monitoring of the applicant with a view to adjusting his drug therapy if necessary. These and the subsequent recommendations of Dr F. were submitted to the authorities by the applicant’s lawyer or wife and appear to have been included in his medical file.

21. On 14 January 2011 a prison doctor ordered the applicant’s medical examination. A week later the applicant underwent a biochemical blood test and a urine test. His diagnosis was re-confirmed and the doctor recommended continuing his treatment with hypotensive drugs.

22. On 21 February 2011 Dr F. prepared a new report pertaining to the quality of the applicant’s treatment. He suggested that the applicant’s hypertension may have become drug-resistant and that a kidney tomography examination with a contrast agent was necessary in order to choose the correct treatment regimen.

23. A week later the applicant was taken back to prison hospital no. 2. A number of medical examinations and tests revealed that he was also suffering from renal hypoplasia and chronic latent pyelonephritis.

24. The applicant subsequently acquired an acute respiratory infection and was prescribed treatment for it. This led to a change in his hypertension therapy, primarily by decreasing the dosage and excluding certain drugs. His angina pectoris attacks became worse, and he was transferred to hospital no. 1 where his condition was brought under control. He was given, among other drugs, high dosages of anticoagulants. He was discharged from the hospital on 22 March 2011 on condition that he remained on the prescribed drug regimen and that his blood pressure and creatinine and urea levels were regularly monitored.

25. From 22 March to 14 April 2011 the applicant was held in facility no. IZ-47/1. The records submitted to the Court do not indicate what drugs or other treatment the applicant received during this period.

26. In the meantime, in March 2011 Dr F. studied the applicant’s clinical records and recommended that he undergo a coronary angiography examination, as well as haemodialysis to define the correct treatment and to prevent possible progress of his kidney disease.

27. On 14 April 2011 the applicant was taken back to hospital no. 2 with a view to adjusting his treatment.

28. Four days later Dr F., an independent nephrologist, Dr G., and the head of the prison hospital examined the applicant in the hospital. They recorded a further deterioration of his heart and kidney functions and suggested that his treatment with anticoagulants might be incorrect given the high risk of heart failure or internal hemorrhage. The doctors recommended that he undergo a coronary angiography examination and a renal tomography or Doppler ultrasound examination.

29. Another examination of the applicant by Dr F. and an independent cardiologist, Dr M., on 22 April 2011 led to the following opinion: the applicant had received adequate hypotensive therapy, which had nevertheless resulted in the aggravation of his hypercreatinemia. They observed that the coronary disease had started prevailing over the remaining diseases and suggested that the applicant’s therapy should be based on regular treatment with anti-aggregants, nitrates and statins. The doctors stressed that there was a high risk of the applicant’s condition deteriorating and leading to his death as a result of heart failure, a stroke or myocardial infarction, should prison medical personnel fail to perform a coronary angiography examination or surgery.

30. On 18 May 2011 the applicant was discharged from the hospital and transferred to temporary detention facility no. IZ-47/4 in St Petersburg (“facility no. IZ-47/4”).

31. On the following day the investigative authorities ordered the applicant’s expert examination. A medical commission was to answer several questions, including whether the applicant’s diseases posed a threat to his life and whether his further detention was compatible with his condition. According to expert report no. 200/K of 27 May 2011, the applicant was suffering from third-degree hypertension, third-stage arterial hypertension, chronic heart insufficiency of the second degree, first-degree chronic venous insufficiency, chronic coronary disease, second-degree angina pectoris, sclerotic kidney, second-stage chronic renal insufficiency, the initial stage of cerebral atherosclerosis, and dyscirculatory encephalopathy of the first degree. The commission stated that those illnesses required constant monitoring and adequate drug therapy. Any breach of his treatment regimen could induce life-threatening complications. The commission nevertheless concluded that the applicant’s condition did not warrant his release from detention.

32. At the end of May 2011 the applicant wrote a note refusing two injections and intravenous therapy and stating that he had lost trust in the attending medical personnel. On one occasion in June 2011 he refused to take a certain medicine, having noted that he had already taken similar drugs earlier that day.

33. On 1 July 2011 the applicant was examined by Dr F., who observed that the authorities had failed to give him necessary drugs and that the applicant’s relatives had had to step in and supply the prescribed medication. He nevertheless noted positive changes in his state of health. Dr F. again strongly insisted that the applicant needed to undergo a coronary angiography examination.

34. The applicant’s wife complained to the Representative of the Russian President in the North-West Federal Circuit of the applicant’s poor treatment in detention. The complaint was to no avail. She also complained to the St Petersburg Ombudsman. On 26 July 2011 the Ombudsman recommended that the applicant’s wife complain before the courts, apply for the applicant’s early release on medical grounds, or complain to the administration of the detention facility.

35. On 11 and 25 August 2011 Dr F. and a doctor from facility no. IZ-47/4 examined the applicant. In their joint report they noted that for a considerable amount of time the applicant had not received even basic vital medication because none had been available in the detention facility. In particular, the applicant did not receive spironolactone, aliskiren, clopidogrel and isosorbide mononitrate. Only the latter drug was substituted with analogous medication. The applicant’s hypertension and coronary disease had deteriorated. The two doctors therefore recommended his admission to hospital.

36. On 19 September 2011 the applicant was examined by Dr G., who found that his kidney disease had progressed to stage three. The doctor stressed that an angiography examination at that stage of the development of the applicant’s illness posed a risk of irreparable damage to the applicant’s kidneys. However, the risk of heart failure was even higher, and therefore an angiogram was vital.

37. On 8 October 2011 the applicant was transferred to the Mariinskiy Hospital of St Petersburg for a coronary angiography examination. He underwent a number of tests in the hospital. A coronary angiography examination performed on 8 December 2011 revealed up to 75% arterial stenosis. The discharge certificate of 13 December 2011 prescribed the installation of a coronary stent. The surgery was to be performed in due course.

38. On 19 December 2011 the applicant was admitted to prison hospital no. 2, where he underwent various medical tests and examinations.

39. In a report prepared after the applicant’s examination on 20 January 2012, Dr F. and the head of the prison hospital stated that he had not received any statins. The absence of this drug had caused an increase in the applicant’s cholesterol level and deterioration in the lipid metabolism indices. In addition, the doctors observed that the applicant’s renal protective therapy had been insufficient and his blood pressure had not been monitored regularly. As a result, his kidney disease had progressed.

40. On 26 April 2012 in the course of the criminal proceedings against the applicant, the trial court ordered his expert examination with a view to updating the information about his state of health, particularly in the light of the results of his coronary angiography examination. In a report issued on 29 May 2012 experts confirmed that there was a high risk of heart complications, including lethal ones. They noted that the applicant’s state of health called for vascular surgery, drug treatment and the limitation of stress.

41. On 16 June 2012 the applicant was discharged from the hospital for a “breach of regimen”, namely his refusal to be examined by two doctors. He continued his treatment as an outpatient.

42. On 14 December 2012 the applicant was readmitted to prison hospital no. 1.

43. In January 2013 Dr G. and Dr F. again assessed the quality of the medical treatment provided to the applicant. They concluded that he had received adequate treatment, that he was in need of endovascular surgery and that his impending transfer to a correctional colony would be incompatible with his state of health.

44. The applicant spent another month in hospital no. 2.

45. On 18 March 2013 the applicant was sent to a correctional colony in the Mordoviya Republic to serve his sentence.

46. Meanwhile, on 1 April 2013 the applicant’s wife complained to the Prosecutor General, the Federal Service for the Execution of Sentences, medical ward no. 78 and other authorities of the continuous failure to properly diagnose and treat her husband. She received no response.

47. On 12 April 2013, after several weeks on the road, the applicant reached correctional colony no. IK-385/5 (“colony no. 385/5”). On admission he was seen by a doctor who confirmed his diagnoses and prescribed clinical blood and urine tests, an electrocardiogram, and examinations by a therapist, a cardiologist and a psychiatrist. Five days later, the applicant was prescribed basic drugs for coronary heart disease and hypertension. On 23 April 2013 he was examined by a psychiatrist, who did not find any acute pathology.

48. The applicant was admitted to prison hospital no. 21, where he spent the first two weeks of June 2013. He was seen by a doctor and again underwent various medical examinations, including blood and urine tests, electrocardiography and ultrasound tests. His diagnoses were confirmed and dietary nutrition and a specific drug regimen were prescribed.

49. From 13 August to 27 September 2013 the applicant was admitted to medical ward no. 13 of the correctional colony. A doctor monitored his health and adjusted his treatment regimen.

50. The applicant spent the entire month of October 2013 in transit between several detention facilities. At that time he contracted acute pharyngitis, which was successfully treated.

51. On 30 October 2013 the applicant’s health significantly deteriorated and he was admitted to the therapeutic department of medical ward no. 13. Tests revealed that he had kidney stones and a benign liver tumour. The applicant’s drug regimen was amended. His condition was considered to have been stabilised.

52. The discharge report issued to the applicant upon his discharge from the medical ward on 22 November 2013 indicated that he was to consult a heart surgeon and a nephrologist.

53. According to the applicant, following his discharge from the ward he was immediately sent to Saransk for the recommended examinations. The journey took over two weeks.

54. On 6 December 2013 a nephrologist and a heart surgeon examined the applicant and diagnosed him with second-degree chronic renal insufficiency, coronary disease, third-degree angina pectoris and atherosclerosis of the arterial vessels. Symptomatic treatment was prescribed for his kidney disease. A coronary angiography examination was also to be performed. In addition, the neurologist noted that the applicant’s state of health did not require haemodialysis.

55. On 24 January 2014 the applicant underwent a coronary angiography examination in Saransk Town hospital. It revealed up to 75% arterial stenosis with an unstable atherosclerosis plaque. Doctors authorised and immediately performed an urgent coronary angioplasty and a coronary stent was installed. The surgery was successful.

II. RELEVANT DOMESTIC LAW

Medical care afforded to detainees

56. Russian law gives detailed guidelines regarding the provision of medical assistance to detainees. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice on the Organisation of Medical Assistance to Individuals Serving Sentences or Remanded in Custody (“the Regulation”), enacted on 17 October 2005, are applicable without exception to all detainees. In particular, section III of the Regulation sets out the initial steps to be taken by the medical staff of a detention facility upon the admission of a detainee. On arrival at a temporary detention facility, all detainees should have a preliminary medical examination before they are placed in a cell shared by other inmates. The aim of the examination is to identify individuals suffering from contagious diseases and those in need of urgent medical assistance. Particular attention should be paid to individuals suffering from contagious conditions. No later than three days after the detainee’s arrival at the detention facility, he or she should be given an in-depth medical examination, including an X-ray. During the in-depth examination a prison doctor should record the detainee’s complaints, study his medical and personal history, log any injuries and recent tattoos, and schedule additional medical procedures if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses.

57. Subsequently, detainees should be given medical examinations at least twice a year, or to follow up a detainee’s complaints. If a detainee’s state of health has deteriorated, medical examinations and assistance should be provided by the detention facility medical staff. In such cases the medical examination should include a general check-up and additional tests, if necessary with the participation of the relevant specialists. The results of the examinations should be recorded in the detainee’s medical file. The detainee should be given full information regarding the results of the medical examinations.

58. Section III of the Regulation also sets out the procedure to follow in the event that a detainee refuses to undergo a medical examination or treatment. For each refusal, an entry should be made in the detainee’s medical record. A prison doctor should give a full explanation to the detainee of the consequences of his refusal to undergo the medical procedure.

59. Any medicines prescribed for the detainee must be taken in the presence of a doctor. In a limited number of circumstances, the head of the detention facility medical department may authorise his medical staff to hand over a daily dose of medicines to the detainee to be taken unobserved.

60. The Internal Regulations of Correctional Institutions, in force since 3 November 2005, deal with every aspect of inmates’ lives in correctional institutions. In particular, paragraph 125 of the Regulations provides that inmates may receive additional medical assistance if they are willing and able to pay for it. In such a situation, medical specialists from a State or municipal civilian hospital are to be called to the medical unit of the correctional institution where the inmate is being detained.

61. Government Decree no. 54 of 6 February 2004 regulates medical examinations of detainees eligible for early release on health grounds. The same Decree contains a list of illnesses precluding an offender from serving his sentence. In particular, the Decree indicates that individuals suffering from progressive infectious, demyelinating and degenerative diseases of the central nervous system, accompanied by organic lesions of the dorsal and cervical brain with stable impairment of body functions (severe paralysis and paresis accompanied by reduced sensitivity, pelvic and trophic dysfunctions, or apparent akinetic-rigid syndrome) may be exempted from serving the remainder of their sentences (§ 21).

III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS

A. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)

62. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:

“Health care

39. Prison authorities shall safeguard the health of all prisoners in their care.

Organisation of prison health care

40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.

40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.

40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.

40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.

40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.

Medical and health care personnel

41.1 Every prison shall have the services of at least one qualified general medical practitioner.

41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency ...

41.4 Every prison shall have personnel suitably trained in health care.

Duties of the medical practitioner

42.1 A medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary ...

42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to ...

b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ...

43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury, and any prisoner to whom attention is specially directed ...

Health care provision

46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civilian hospitals when such treatment is not available in prison.

46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”

B. 3^rd General Report of the European Committee for the Prevention of Torture (“ the CPT Report” )

63. The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The following are extracts from the Report:

“33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.

It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.

34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...

35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.

As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.

Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.

36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital ...

38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.

There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.) ...

39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.

Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.

40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

64. The applicant complained that the authorities had not taken steps to safeguard his health and well-being, having failed to provide him with adequate medical assistance in breach of Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

65. The applicant also claimed that he had not had at his disposal an effective remedy to complain about those violations of the guarantee against ill-treatment, as required under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”

A. Submissions by the parties

66. The Government put forward two lines of argument.

67. Firstly, they argued that the applicant had failed to exhaust domestic remedies. He should have raised his complaint before the domestic authorities, including the administration of the detention facilities, a prosecutor’s office or a court, but had failed to do so.

68. Secondly, the Government argued that the applicant had undergone regular medical examinations and tests while in detention, including coronary angiographies. His state of health had been duly monitored by medical specialists, who had provided him with the required medical assistance and treatment. He was often examined by independent medical consultants, whose opinion was taken into account by his doctors. The applicant was provided with drug therapy, but on several occasions he refused to comply with doctors’ recommendations and to take the prescribed medicines. Therefore the deterioration of his health should not be attributed to the State authorities, which had duly discharged their obligations under Article 3 of the Convention. The Government supported their arguments with a certificate issued on 9 December 2013 by the administration of medical ward no. 13 stating that there had never been any problems in supplying the medication required by the applicant.

69. The applicant maintained his complaints. He argued that he had not been afforded the required medical assistance or all of the prescribed medications, that the authorities had significantly delayed his first coronary angiography examination and the heart surgery, and that his frequent transfers between various medical and detention facilities had run counter to the doctors’ recommendations.

70. Lastly, the applicant argued that his and his wife’s numerous complaints to various authorities about the lack of adequate medical care had been unsuccessful and that he therefore had no effective means of complaining about the poor quality of his medical treatment.

B. The Court’s assessment

1. Admissibility

71. The Court notes that the Government raised an objection of non-exhaustion of domestic remedies. This issue is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy to air his dissatisfaction with the lack of effective medical care. It is therefore necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention.

72. The Court further notes that the applicant’s complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits

(a) Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention

(i) General principles

73. The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, §115, 23 February 2016; Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015; Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014 and Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).

74. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Mozer, cited above, § 116; Gherghina, cited above, § 85; Vučković and Others, cited above, § 71 and Akdivar and Others, cited above, § 66). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mozer, cited above, § 116; Gherghina, cited above, § 85; Vučković and Others, cited above, § 74 and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II).

75. The Court emphasises that the application of this rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights which the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically: in reviewing whether it has been observed, it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40). This means, amongst other things, that ‒ realistically ‒ account must be taken not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, §§ 65-68).

76. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. At the same time, the remedy required by Article 13 must be “effective” in practice as well as in law, in the sense of either preventing the alleged violation or its continuation, or providing adequate redress for any violation that has already occurred (see Kudła, cited above, §§ 157-58, and Wasserman v. Russia (no. 2), no. 21071/05, § 45, 10 April 2008).

77. Where the fundamental right to protection against torture and inhuman and degrading treatment is concerned, the preventive and compensatory remedies must be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3 of the Convention. Indeed, the particular importance attached by the Convention to that provision requires, in the Court’s view, that the States Parties establish, over and above a compensatory remedy, an effective mechanism in order to put a rapid end to any such treatment. Were it otherwise, the prospect of future compensation would legitimise particularly severe suffering in breach of this core provision of the Convention (see Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008).

(ii) Application of the above principles to the present case

78. Turning to the facts of the present case, the Court notes the Government’s argument that the applicant did not exhaust domestic remedies. The Court is not convinced by this submission. The documents produced by the applicant, such as copies of letters to and from various domestic authorities, show that the complaints concerning the quality of the medical treatment afforded to him were raised before, inter alia, the Department of the Federal Service for Execution of Sentences in the St Petersburg and Leningrad Region, the Investigative Committee of the Leningrad Region, the Representative of the Russian President to the North-West Federal Circuit, the Ombudsmen of St Petersburg, and the administration of medical wards no. 78 (see paragraphs 18, 35, and 47 above). The Court therefore finds that the applicant took the necessary steps to draw the attention of the authorities to the issue of the medical care afforded to him in detention, and thus provided them with an opportunity to put right the alleged violations. This has been sufficient for the Court on many occasions to dismiss a Government’s objection of non-exhaustion (see, for instance, Gurenko v. Russia, no. 41828/10, § 78, 5 February 2013).

79. However, the Court’s task in the present case is to examine the effectiveness of various domestic remedies suggested by the Russian Government, and not merely to determine whether the applicant made his grievances sufficiently known to the Russian authorities. In this connection, the Court has on many occasions examined the effectiveness of the domestic remedies suggested by the Government in cases of applicants complaining of ongoing inadequate medical treatment, such as in the present case. It found, in particular, that in deciding on a complaint concerning breaches of domestic regulations governing the provision of medical care to detainees, the prison authorities would not have a sufficiently independent standpoint to satisfy the requirements of Article 35 of the Convention (see Dirdizov v. Russia, no. 41461/10, § 75, 27 November 2012 and Koryak v. Russia, no. 24677/10, § 79, 13 November 2012). The Court also stressed that even though review by a supervising prosecutor played an important part in securing appropriate medical care in detention, a complaint to the supervising prosecutor fell short of the requirements of an effective remedy, because of the procedural shortcomings that had been previously identified in the Court’s case-law (see Koryak, § 80-81, cited above). Having assessed a civil claim for compensation under the tort provisions of the Civil Code, the Court considered that such a claim could not offer an applicant any other redress than a purely compensatory award, and could not put an end to a situation where there was an ongoing violation, such as inadequate medical care (see Reshetnyak v. Russia, no. 56027/10, §§ 65-73, 8 January 2013). Moreover, the Court found that such a remedy did not offer reasonable prospects of success, in particular because the award was conditional on the establishment of fault on the part of the authorities, which was extremely improbable in a situation where domestic legal norms prescribed the application of a certain measure, for instance certain conditions of detention or the level of medical treatment (see A.B. v. Russia, no. 1439/06, § 96, 14 October 2010).

80. Having declared the applicant’s claim of inadequate medical care in detention admissible (see paragraph 72 above), and given the applicant’s health problems and the seriousness of his allegations, the Court finds that it was “an arguable claim”. Accordingly, the respondent State had an obligation to ensure the availability of an effective remedy to deal with the substance of his complaint. Taking into account the circumstances of the present case and the aforementioned case-law, the Court sees no reason to depart from its previous findings on the issue. It concludes that the legal avenues put forward by the Government did not constitute an effective remedy that could have been used to prevent the alleged violations or their continuation and provide the applicant with adequate and sufficient redress for his complaints under Article 3 of the Convention.

81. Accordingly, the Court rejects the Government’s objection as to the exhaustion of domestic remedies and finds that the applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention.

(b) Alleged violations of Article 3 of the Convention

(i) General principles as regards the standards of medical care for detainees

82. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

83. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).

84. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, §§ 92-94, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most cases concerning the detention of sick people, the Court has examined whether or not the applicant received adequate medical care in prison. The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to assure the health and well-being of detainees as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts); and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).

85. In the absence of an effective remedy to air complaints of inadequate medical services afforded to inmates, the Court may find itself obliged to perform a first-hand evaluation of evidence before it to determine whether the guarantees of Articles 2 or 3 of the Convention have been respected (see Koryak v. Russia, no. 24677/10, 13 November 2012; Dirdizov v. Russia, no. 41461/10, 27 November 2012; Reshetnyak v. Russia, no. 56027/10, 8 January 2013; Mkhitaryan v. Russia, no. 46108/11, 5 February 2013; Gurenko v. Russia, no. 41828/10, 5 February 2013; Bubnov v. Russia, no. 76317/11, 5 February 2013; Budanov v. Russia, no. 66583/11, 9 January 2014, and Gorelov v. Russia, no. 49072/11, 9 January 2014; Amirov v. Russia, no. 51857/13, 27 November 2014, § 90). In that role, paying particular attention to the vulnerability of applicants in view of their detention, the Court consistently calls on the Government to provide credible and convincing evidence showing that the applicant concerned has received comprehensive and adequate medical care in detention.

86. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists, in particular, that authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko, cited above, § 100; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-06, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006) and that ‒ where necessitated by the nature of a medical condition ‒ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114, and Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005).

87. The Court further reiterates that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same medical treatment that is available in the best health establishments outside prison facilities (see Cara-Damiani v. Italy, no. 2447/05, § 66, 7 February 2012).

88. 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).

89. While the mere fact that an applicant’s state of health has deteriorated may raise, at an initial stage, certain doubts concerning the adequacy of his or her treatment in prison, it cannot suffice, by itself, for a finding of a violation of the State’s positive obligations under Article 3 of the Convention if, on the other hand, it can be established that the relevant domestic authorities have provided in a timely fashion all reasonably available medical care in a conscientious effort to hinder development of the disease in question (see, among other authorities, Goginashvili v. Georgia, no. 47729/08, §§ 69-71, 4 October 2011).

(ii) Application of the above principles to the present case

90. At the outset the Court notes that before his arrest the applicant was afflicted with various cardiovascular and kidney diseases, had had a stroke, a closed craniocerebral injury, and myocardial infraction. A number of the illnesses had already progressed to advanced stages. The authorities became aware of his poor health immediately upon his admission to the detention facility.

91. The applicant identified two major deficiencies in the medical care afforded to him in detention. Firstly, he argued that on several occasions between 2010 and 2013 he had not been given some of the prescribed drugs. His argument finds some support in the entries made in his medical record on 14 December 2010, 1 July, 11 and 25 August 2011 and 20 January 2012 (see paragraphs 20, 33, 35 and 39 above). However, there is no evidence - and the applicant makes no specific allegations - that the failures were long-lasting or that they had any impact on the applicant’s state of health. Moreover, it appears that the applicant also contributed to the interruption of the drug regimen and thus the possible shortcomings in his therapy, having occasionally refused to take drugs or to agree to intravenous therapy and medical examinations (see paragraphs 14, 32 and 41 above). Against this background the Court cannot conclude “beyond reasonable doubt” that the failures to ensure the applicant’s unrestricted access to medicine rendered ineffective the medical assistance provided to him throughout his detention.

92. Secondly, the applicant submitted that one of the two prescribed coronary angiography examinations had been delayed. The Court notes that it was indeed the case that such an examination was first recommended by Dr F., a cardiologist chosen by the applicant’s wife, on 2 March 2011, and that it was performed slightly over nine months later, on 8 December 2011 (see paragraphs 26 and 37 above). The Court further notes that during that period, the applicant was taken to hospital in April 2011, and examined on a number of occasions. In particular, he was examined in hospital by Dr F. and two other doctors, and again after his transfer to prison on 18 May 2011. Dr F. again recommended a coronary angiography in July 2011, but the recommendation was not repeated after examinations in August 2011 by Dr F. and a prison doctor. Dr G. considered in September 2011 that an angiogram was vital, notwithstanding the risks, and the applicant was transferred to hospital for that purpose in October 2011. After a series of tests, the examination was performed on 8 December 2011. Whilst the examination could have been carried out more quickly, the Court has not been provided with any material which could suggest that the delay in providing this diagnostic (rather than curative) measure, even if taken cumulatively with the occasional interruptions in the applicant’s drug therapy mentioned in the previous paragraph, could lead to a conclusion that the medical assistance rendered to him in detention was ineffective and inadequate.

93. The Court observes that the management of the applicant’s coronary diseases from 2010 to 2014 resulted in its successful treatment by means of re-vascularisation surgery, an installation of a coronary stent, recommended by the applicant’s cardiologists. The applicant promptly recovered from secondary diseases such as a respiratory disease and pharyngitis (see paragraphs 24 and 50 above). His chronic illness did not exhibit significant signs of progress, save for a kidney disease that progressed to the next stage during his detention (see paragraph 36 above). Taking into account the difficulties in treating chronic diseases, particularly in detention where the process is complicated by inevitable negative factors, including stress, the Court is satisfied with the outcome of the applicant’s treatment. However, this finding does not suffice and the Court has to examine the process of the treatment itself.

94. In this connection, the Court notes that the applicant remained under close medical attention in detention. His serious heart conditions were noted by the authorities in the first days after his arrest (see paragraph 12 above). Shortly thereafter, the prison doctor recommended in-patient treatment and the applicant was taken to a prison hospital (see paragraph 13 above). Having undergone various medical tests in the hospital, he was prescribed and administered drug therapy. He was taken to prison hospitals and medical wards on a regular basis (see paragraphs 17, 23, 27, 37, 38, 42, 44, 48, 49, 51 and 55 above). The medical specialists, including cardiologists and nephrologists, monitored the effectiveness of his treatment and adjusted it where necessary. The Court considers particularly important the fact that the authorities allowed independent doctors to visit the applicant in detention and to include their opinions on his treatment regimen in his medical records for further consideration by the prison doctors (see paragraphs 20, 22, 26, 28, 29, 33, 35, 36 and 43 above).

95. The Court is mindful of the applicant’s remaining arguments pertaining to the alleged delay of the coronary surgery and the frequent transfers between detention facilities. The Court notes that his medical documents showed that when heart surgery was recommended for the first time at the end of 2011, it was not considered to be an urgent necessity but was to be carried out in due course (see paragraph 37 above). The surgery was performed immediately after the urgency had arisen (see paragraph 55 above). Lastly, there is nothing to suggest that the applicant’s transfers between the facilities had any significant impact on his health or the quality of the medical treatment, given that the continuity of his treatment was preserved.

96. In the light of foregoing considerations, the Court is not convinced that the applicant did not receive adequate medical assistance in detention. Accordingly, it finds no violation of Article 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

97. 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

98. The applicant only claimed 100,000 euros (EUR) in respect of pecuniary damage to cover his medical expenses.

99. The Government submitted that the applicant’s claim was ill-founded.

100. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the claim in full.

B. Costs and expenses

101. The applicant did not specify the sum claimed in respect of costs and expenses.

102. The Government submitted that the applicant’s claim was unsubstantiated by evidence.

103. The Court reinstates that according to its case-law, an applicant is entitled to the reimbursement of costs and expenses only 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 the applicant has failed to mention the amount of his costs and expenses or to provide any documents in that regard; the Court therefore rejects the claim of compensation for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins the Government’s objection as to the alleged non-exhaustion of domestic remedies in respect of the applicant’s complaint under Article 3 to the merits of his complaint under Article 13 and rejects it;

2. Declares admissible the complaints concerning the lack of adequate medical assistance in detention and the alleged absence of an effective domestic remedy in this connection;

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds that there has been no violation of Article 3 of the Convention;

5. Dismisses the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LITVINOV v. RUSSIA - 32863/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 288 (22 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/288.html Cite as: [2016] ECHR 288