KOLESNIKOVICH v. RUSSIA - 44694/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 289 (22 March 2016)

In the case of Kolesnikovich 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. 44694/13) 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 Vladimir Vladimirovich Kolesnikovich (“the applicant”), on 29 August 2012.

2. The applicant, who had been granted legal aid, was represented by Ms N. Alekseyeva, a lawyer practising in Krasnoyarsk. 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 adequate 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 1978 and until his arrest lived in Krasnoyarsk. He is currently serving a sentence in a correctional colony in the Krasnoyarsk Region.

A. Criminal proceedings against the applicant

7. On 13 December 2005 the applicant was arrested on suspicion of aggravated kidnapping, murder, fraud and conspiracy.

8. On 27 December 2007 the Krasnoyarsk Regional Court found him guilty as charged and sentenced him to twenty-four years and eleven months’ imprisonment. The first seven years were to be served in a prison and the remaining term in a high-security correctional colony.

9. On 24 December 2008 the Supreme Court of Russia upheld his conviction and sentence on appeal.

B. The applicant’s health and treatment

1. The applicant’s health before his arrest

10. The parties provided the Court with the applicant’s medical documents, including clinical records, discharge summaries and expert reports. Parts of the clinical records drawn up during his detention and submitted to the Court by the Government are illegible.

11. On several occasions before his arrest the applicant underwent inpatient and outpatient treatment in civilian hospitals. Between 1999 and 2001 he was treated for cerebral concussion, cerebral contusion, vertebral contusion, knee pain and a duodenal ulcer.

2. Remand prison

12. After his arrest on 13 December 2005 the applicant was taken to a police detention facility in Krasnoyarsk. Two days later he was transferred to remand prison no. 24/1 (“the remand prison”), also in Krasnoyarsk, where resident doctors carried out a general check-up, noting in the medical file that he had sustained a brain injury and suffered from a duodenal ulcer. The doctors found him fit for detention, noting that detention in northerly regions should be avoided.

13. According to the applicant, in 2005 and in 2006 he complained to the prison doctor about various health problems, including stomach pain, but his complaints remained unnoticed by the authorities. His medical records for the period between 2005 and 2007 did not contain any entries regarding his complaints, medical examinations or treatment in that period.

14. On 16 June 2007 the prison doctor saw the applicant after he complained of stomach pain and deteriorating eyesight. He diagnosed the applicant with a duodenal ulcer in the acute phase and myopia, but did not prescribe any treatment. He noted that a specific endoscopy was to be performed.

15. On 19 July and 13 and 16 August 2007 the trial court adjourned its hearings in the applicant’s case as he did not feel well and had complained of severe stomach pain. The court asked the detention authorities to submit detailed information on his actual state of health.

16. In August 2007 the applicant received injections of drotaverine allegedly provided by his mother, a retired doctor, to relieve his stomach pain. On 21 August 2007, at a court’s request, a deputy head of the prison medical ward examined the applicant and observed that he was receiving treatment for an acute duodenal ulcer. In addition, he noted that the applicant was to be transported to Regional Tuberculosis Hospital no. 1 (“the prison hospital”) for the fibrogastroduodenoscopy ordered in June 2007.

17. On 19 October 2007 the applicant was taken to the prison hospital. Multiple tests performed there led to him being diagnosed with first-stage myopia, a duodenal ulcer in remission and duodenitis associated with cicatricial deformation of the duodenum bulb. Omeprazole was prescribed. Insofar as the submitted medical records could be deciphered, the applicant did not receive the prescribed treatment.

18. In March 2009 the applicant was transported to the prison hospital for the second time. This time the doctors prescribed him medication for his myopia and neurological symptoms resulting from the trauma in 1999. The medical records did not contain any information on the actual intake of drugs by the applicant.

19. In October 2009 the applicant’s stomach pain came back. A fibrogastroduodenoscopy showed that he suffered from duodenitis with cicatricial deformation of the duodenum bulb and antral gastritis. The resident doctor saw him in October 2009 and January 2010, prescribing him drug treatment and a special diet. The applicant’s medical records do not contain any information indicating that the doctor’s recommendations were followed.

20. On 19 March 2010 the applicant underwent an in-depth medical examination in the prison hospital. It showed that in addition to his peptic problems, erosive duodenitis and antral gastritis, the applicant had developed first-stage sensorineural hearing loss and his myopia had progressed slightly. A drug programme and special diet were recommended. According to the applicant, the recommendation was not followed by the authorities. His medical documents contain no entries in this regard.

21. In early April 2010 the court had to adjourn several hearings in the applicant’s criminal case owing to his severe stomach pain. It ordered the detention authorities to provide him with anti-ulcer treatment. At the end of that month the applicant was examined in a civilian hospital, which diagnosed him with an aggravated ulcer and acute gastritis. Inpatient treatment was prescribed. The authorities did not admit him for it.

22. The next recurrence of the applicant’s ulcer occurred in autumn 2010. According to the medical records, the applicant did not receive any drugs at that time. An examination on 21 December 2010 showed that his ulcer had grown and the duodenitis and gastric disease had progressed further. A civilian doctor who visited him recommended inpatient treatment, but he remained in the remand prison. The resident doctor prescribed drug treatment in December 2010 and January and March 2011. However, the medical records contain no information concerning the actual provision of the prescribed drugs to the applicant. According to him, only one of the drugs was made available to him. His mother sent him the required drugs in June 2011 to enable him to receive at least some relief.

23. A new acute stomach pain attack occurred in December 2011. The applicant was immediately taken to the prison hospital for an X-ray examination and a surgical consultation. The surgeon concluded that the applicant’s condition did not call for surgery. Over the next few days the applicant was diagnosed with duodenitis and recurring acute gastritis which had passed to the chronic stage. Drug treatment was prescribed, but the Court was not given any records showing that he actually received it.

24. In the meantime the applicant started complaining of mild knee pain and impeded nasal breathing allegedly caused by a broken nose in 2006 while in detention on remand. He stated that he had received some medication for knee pain, but had not undergone any septal surgery.

25. In the beginning of 2012 the applicant underwent a magnetic resonance imaging scan of the brain and spine in a civilian hospital. He paid for the scan himself, which revealed the presence of Schmorl’s nodes, protruded discs, spondylarthrosis and a haemangioma in one of the spinal discs. It also indicated moderate changes within local tissue associated with a cerebrospinal fluid cyst in the arachnoid membrane of the brain. These diagnoses were confirmed by the prison doctor, who found that the applicant’s condition did not call for surgical treatment.

26. The applicant was sent to a prison to serve his sentence.

3. Prison

27. On 23 October 2012 the applicant arrived at the prison in Minusinsk in the Krasnoyarsk Region (“the prison”). On admission he was seen by a prison doctor, who considered him to be in satisfactory health. He was included on a list of detainees subject to regular medical check-ups and enhanced medical attention.

28. The next day he was diagnosed with acute gastritis and degenerative disc disease. He was prescribed a fibrogastroduodenoscopy and several drugs, including nonsteroidal anti-inflammatory medication and medication to treat his gastritis. He refused to comply with the doctors’ recommendations pertaining to the endoscopy and anti-inflammatory drugs, insisting that they would lead to a further deterioration of his ulcer. He nevertheless took the medication prescribed for gastritis treatment. According to the medical records, the ulcer treatment continued for the following few months.

29. In the meantime, an independent medical specialist and neurologist, Dr M., assessed the applicant’s health and prepared a report on 5 November 2012. It stated that he should be admitted to a neurological or neurosurgical medical facility, where his spinal problems could be treated with nonsteroidal anti-inflammatory medication, neuromuscular blocking agents and painkillers. The doctor gave detailed recommendations concerning the applicant’s treatment.

30. On 29 November 2012 the prison doctor prescribed the applicant vitamin injections and pain-relief ointment to treat his spinal problems. Several days later the doctor authorised an additional hour’s rest from physical activity and prescribed nonsteroidal anti-inflammatory medication, spasm relief analgesics and omeprazole for his peptic problems.

31. In the absence of any positive developments, in January 2013 the doctor amended the spinal treatment and introduced a stronger anti-inflammatory drug.

32. In March 2013 the applicant was transferred to the prison hospital. Tests showed that his conditions had not progressed. The gastritis and duodenal ulcer were in remission. The applicant was prescribed omeprazole and sucralfate-based medication. According to an entry made in his medical history on 26 March 2013, his attending doctor recommended testing for the bacteria Нelicobacter pylori (“H.pylori”). The test was never performed.

33. After the applicant’s return to the prison his treatment continued in line with the recommendations of the prison hospital doctors. He received meloxicam and omeprazole. However, in May 2013 his duodenal ulcer again worsened. The acute phase lasted about two months.

34. On 17 July 2013 the applicant was examined by a number of medical specialists from a mobile prison hospital. He was diagnosed with a duodenal ulcer in remission, chronic gastritis, erosive duodenitis, osteoarthritis of the left knee, Raynaud’s syndrome, degenerative disc disease, acute back pain and second-stage myopia. He was prescribed drug treatment. The records do not indicate that he received all of the prescribed medications.

35. On 7 August 2013 the prison authorities received a parcel of medication from the applicant’s mother. He was treated with those drugs until 30 August 2013, when he was sent to a correctional colony.

4. Correctional colony

36. On 11 September 2013 the applicant arrived at correctional colony no. 288/17 in Krasnoyarsk. He complained to the resident doctor of nausea and was diagnosed with an ulcer and degenerative disc disease. He was put on a list of detainees for close medical supervision. The doctor noted that the applicant required anti-recurrence ulcer treatment and in-depth examinations every six months, recording that it was necessary for him to be placed on a special diet when the ulcer recurred.

37. On 18 September 2013 the applicant was seen by doctors from the mobile prison hospital and underwent a fibrogastroduodenoscopy. It revealed that he had antral gastritis. According to him, his mother bought him medication for the ulcer treatment and sent it to the correctional colony.

38. In November 2013 the applicant had another severe attack of stomach and back pain. The prison doctor prescribed him drugs, injections of painkillers and vitamins. According to the Government, he refused to take one of the drugs, a nonsteroidal anti-inflammatory. He disputed that allegation.

5. Court proceedings pertaining to the quality of the applicant’s treatment

39. On 30 August 2013 the applicant filed a complaint against the prison administration, arguing that his treatment fell short of the requirements of Russian law. He stressed that the authorities had failed to properly treat his conditions.

40. On 16 October 2013 the Minusinsk Town Court dismissed the applicant’s complaint, finding that the authorities had provided him with adequate treatment. According to the court, he was regularly seen by a doctor and prescribed medication, including anti-inflammatory drugs and painkillers. They were given to the applicant as prescribed. His condition remained stable between 23 October 2012 and 30 August 2013.

41. On 17 March 2014 the Krasnoyarsk Regional Court upheld the judgment on appeal.

II. RELEVANT DOMESTIC LAW AND APPLICABLE MEDICAL RECOMMENDATIONS

A. Medical care afforded to detainees

42. 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”) adopted 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 remand prison, all detainees should have a preliminary medical examination before they are placed in a cell shared with 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 a detainee’s arrival at the detention facility, he or she should be given an in-depth medical examination, including an X-ray. During this 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.

43. Subsequently, detainees should be given medical examinations at least twice a year, or to follow up a complaint. 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. He or she should be given full information regarding these results.

44. Any medicines prescribed for a detainee must be taken in the presence of a doctor. In a limited number of circumstances, the head of the medical department of a detention facility may authorise the medical staff to hand over a daily dose to a detainee to be taken unaccompanied. The authorities should provide every detainee undergoing outpatient treatment with an individual medical file. The doctor’s prescription and details of its fulfilment should be recorded in the medical file.

45. 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 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 called in to the medical unit of the correctional institution where the inmate is being detained.

46. Government Decree no. 54 of 6 February 2004 regulates medical examinations of detainees eligible for early release on health grounds. It contains, inter alia, a list of illnesses which may preclude an offender from serving all or a part of his sentence. These include progressive infectious, demyelinating and degenerative disorders of the central nervous system, accompanied by lesions of the brain and spine with serious impairment of body function (severe paralysis and paresis accompanied by reduced sensitivity, pelvic and trophic dysfunctions, presenting as akinetic-rigid syndrome).

B. Medical recommendations for treating peptic system disorders

47. It had been known for some time that ulcer disease was due to the microorganism¸ H.pylori, and could be addressed with generally good results by antibiotics. This was, in particular, referred to by the Russian Ministry of Health and the Russian Gastroenterology Association in the “Clinical Recommendations for Diagnosing and Treating Ulcers” published in 2013. The relevant parts read as follows:

“2.1. Definition

An ulcer is a chronic, recurrent disease with alternating periods of recurrence and remission. The obvious manifestation of the disease is an ulcer in the wall of the stomach or duodenum.

...

2.2. Aetiology and pathogenesis

Crucial to the development of ulcer disease is the microorganism H.pylori discovered in 1983 by two Australian scientists, B. Marshall and J. Warren.

...

3.4. Diagnostic of H.pylori

Results of H.pylori tests are exceptionally important for choosing the right treatment.

...

7. Treatment

Treatment of ulcer disease should be comprehensive and include not only prescription drugs, but other measures, including clinical nutrition, stopping smoking and alcohol abuse, avoiding ulcerogenic medication, adjusting work-life balance...

7.3. Treatment of H.pylori

High frequency of recurrence subsequent to stopping a course of anti-secretory medications is the “Achilles heel” of the conservative treatment of ulcers ... Eradicating the infection Н.pylori in patients with ulcer disease results in a drop in the frequency of recurrence from 70% to 4-5% in the years that follow. A low frequency of recurrence remains in the years that follow.”

48. According to the Maastricht IV/Florence Consensus report accepted on 22 February 2012 in the 4th Maastricht/Florence Consensus Conference on Management of H.pylori infection, H.pylori is the key factor in peptic ulcer development and eradication is recommended for both duodenal and gastric ulcers, as it has been shown that H.pylori eradication effectively achieves ulcer healing rates exceeding 90%. The report further states that both the H.pylori infection and nonsteroidal anti-inflammatory drugs are independent risk factors for the development of peptic ulcer disease and associated bleeding.

49. It seems that a standard for treatment of this kind was formally set in Russia by Order no. 773n of the Russian Ministry of Health on 9 November 2012 on approval of the “Standard of Medical Treatment of Gastric Ulcers and Duodenum Ulcers”. According to it, a test for H.pylori is necessary for all patients suffering from an aggravated ulcer.

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

50. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts 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 (CPT)

51. 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 civilian 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

52. 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.”

53. He also claimed that he had not had at his disposal an effective remedy whereby to complain about this violation of the guarantee against ill-treatment, as required by 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

1. Applicant’s submissions

54. Firstly, the applicant stated that on numerous occasions he had not been provided with the medication prescribed for treating his ulcer, brain cyst, myopia and degenerative disc disease. He further claimed that the ulcer treatment had been ineffective. He had never been tested for H.pylori or provided with anti-recurrence treatment. The doctors merely provided symptomatic treatment to deal with the acute stage of his illnesses, having failed to adopt a long-term therapeutic strategy. His gastritis had developed in detention, in the end becoming a chronic condition. He had not been provided with any treatment for Raynaud’s syndrome and no septal surgery had been performed to improve his breathing.

55. Secondly, the applicant claimed that he had had no effective remedy whereby to complain about the deficiencies in his treatment.

2. Government’s submissions

56. The Government put forward two lines of argument. Firstly, they argued that the applicant had failed to exhaust domestic remedies. They stated that the applicant should have raised his complaint before the domestic authorities, including the administration of the detention facilities, a prosecutor or court. He had failed to do so. This failure could not be explained by a fear of pressure or persecution by the prison authorities, as he had sent over a thousand complaints and applications to various authorities during his detention.

57. Secondly, the Government argued that the applicant had been provided with adequate medical care in detention. He had undergone regular medical check-ups and had been seen by the prison doctors and admitted to the prison hospital when necessary. His state of health had not warranted his release from detention on medical grounds.

B. The Court’s assessment

1. Admissibility

58. The Court notes that the Government raised the 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 whereby to air his dissatisfaction with the quality of the medical care afforded to him in detention. It is therefore necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention.

59. 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 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

60. 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 1996-IV).

61. 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).

62. 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 v. Poland [GC], no. 30210/96, §§ 157-158, ECHR 2000-XI and Wasserman v. Russia (no. 2), no. 21071/05, § 45, 10 April 2008).

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

63. 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. He complained about his poor health and of the authorities’ failure to address his health concerns to a court in the course of the criminal proceedings against him, and brought a claim in court against the prison authorities (see paragraphs 15, 21 and 39 above). Those were clear attempts to draw the authorities’ attention to his state of health. This alone has been sufficient for the Court to dismiss a Government’s objection of non-exhaustion (see, for instance, Gurenko v. Russia, no. 41828/10, § 78, 5 February 2013).

64. The Court further observes that it has on many occasions examined the effectiveness of the domestic remedies suggested by the Government, namely a complaint to the administration of a detention facility, a prosecutor’s office or a court (see, among many other authorities, Patranin v. Russia, no. 12983/14, §§ 86-88, 23 July 2015; Gorbulya v. Russia, no. 31535/09, §§ 56-58, 6 March 2014; and Reshetnyak v. Russia, no. 56027/10, §§ 65-73, 8 January 2013). In the aforementioned cases the Court established that none of the legal avenues put forward by the Government constituted an effective remedy which could have been used to prevent the alleged violations or their continuation and provide the applicant with adequate and sufficient redress for his or her complaints under Article 3 of the Convention. Accordingly, the Government’s objections of non-exhaustion of domestic remedies were dismissed.

65. Having declared the applicant’s claim of inadequate medical care in detention admissible (see paragraph 59 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.

66. 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

67. 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).

68. 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, 2002-III, with further references).

69. 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).

70. 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 v. Russia, no. 41833/04, § 100, 27 January 2011; 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, §§ 104-106, 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). 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).

71. 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. This 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).

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

72. At the outset the Court notes that on several occasions before his arrest the applicant was treated in civilian hospitals for his brain and spinal injuries, knee pain and a duodenal ulcer. In detention his health deteriorated, suffering in particular of duodenitis, chronic gastritis and Raynaud’s syndrome. His ulcer recurred frequently and his musculoskeletal disorders progressed further. Given this deterioration, the Court finds it necessary to assess the quality of the medical care afforded to him by the Russian penal authorities in order to determine whether the requirements of Article 3 of the Convention have been respected.

73. The Court observes that following the applicant’s arrest the authorities became promptly aware of his many health problems (see paragraph 12 above). However, they did no more than check whether he was fit for detention. During the first two years of his detention they did not subject him to any medical supervision. They only became attentive to his health problems after his health had worsened to the extent that he could no longer take part in court hearings (see paragraph 15 above). The Court finds unacceptable the unrebutted lax attitude of the prison authorities towards the applicant (see paragraph 13 above) for such a lengthy period of time.

74. The Court further notes the applicant’s argument that on a number of occasions the authorities failed to provide him with the prescribed drugs. Taking into account the fact that at the relevant time the applicant was under the authorities’ control, and was therefore particularly vulnerable, the Court considers that the burden is on the Government to prove that the prescribed medication was given to the applicant. Under Russian law, each dose of prescribed drugs must be recorded in a detainee’s personal medical file (see paragraph 44 above). However, the Government failed to submit any documents recording the applicant’s drug intake in October 2007 and March and October 2009, and in the period between September 2010 and March 2011 (see paragraphs 17-20 and 22 above). At the same time, the evidence submitted by the parties clearly indicates that it was the applicant’s mother who replaced the authorities and sent the required medication, or at least some of it, to the applicant to comply with the doctors’ advice (see paragraphs 17, 24 and 41 above). The Court considers the authorities’ failure to provide the applicant with some of the required medication to be a serious shortcoming. This is particularly so in view of the applicant’s lengthy history of suffering from an ulcer and the frequency of its recurrence. The Court is not convinced that the authorities properly assessed the complications of the applicant’s condition or attempted to determine the cause of the frequent ulcer recurrence.

75. In addition to the above the Court finds another major flaw in the medical care afforded to the applicant in detention that is the failure to perform the H.pylori test required for ulcer diagnosis and treatment. The importance and value of this test may be seen from the authoritative medical recommendations listed in paragraphs 47-49 above.

76. The facts of the case show that the management of the applicant’s treatment had no strategy aimed at reducing the frequency of recurrence. His treatment lacked foresight and was therefore patently ineffective. Moreover, it seems that the authorities never assessed the compatibility of the applicant’s treatment with nonsteroidal anti-inflammatory drugs for degenerative disc disease with his ulcer disease, even though such medication may induce gastrointestinal bleeding and deterioration of the patient condition (see paragraph 49 above).

77. In this connection the Court reiterates the Government’s submission that the applicant refused to take certain, nonsteroidal anti-inflammatory drugs, citing fears of further deterioration of his condition. The Court notes that the applicant’s fears seem to be supported by the findings of the international medical community (see paragraph 49 above). The Court would once again stress that the authorities failed to create the necessary conditions for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116), by failing to ensure that the applicant received the proper medication under supervision and observation by the prison medical staff and adhered to the prescribed regimen, an important factor in the effective treatment of any illness.

78. The Court is also mindful of other shortcomings in the applicant’s treatment, including his delayed admission to the prison hospital in October 2007 (see paragraph 17 above). His admission was required so that he could be correctly diagnosed and prescribed adequate treatment for the severe stomach pain related to his ulcer disease. Although his transfer to hospital was not urgent, the authorities should have acted with sufficient promptness to ensure his timely inpatient treatment. However, it took several months to transfer him from the remand prison to the hospital located in the same town. Having regard to the fact that while waiting to be transferred the applicant did not receive any drugs aimed at least at relieving his severe stomach pain, the Court finds that situation unsatisfactory.

79. Lastly, the Court considers regrettable that the authorities did not duly assess the need for the applicant’s inpatient treatment in 2010, when recurrence of the ulcer was particularly severe and recommendations for inpatient treatment were made on two occasions by civilian specialists (see paragraphs 21 and 22 above).

80. The Court considers that the aforementioned shortcomings in the treatment of the applicant’s ulcer, taken cumulatively, show that the authorities failed to ensure prompt and effective medical care that involved a comprehensive therapeutic strategy aimed at successfully treating his health problems. In these circumstances, it does not need to proceed with an examination of the quality of the medical assistance the applicant received in respect of his remaining medical conditions.

81. To sum up, the Court finds that the authorities’ failure to provide the applicant with the medical care he needed in the serious condition, in which he found himself, amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. Accordingly, there has been a violation of Article 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

82. 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

1. Pecuniary damage

83. The applicant claimed 12,300 Russian roubles (RUB) (251 euros (EUR)) in respect of pecuniary damage.

84. The Government submitted that the claim was ill-founded.

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

2. Non-pecuniary damage

86. The applicant claimed EUR 370,000 in respect of non-pecuniary damage.

87. The Government submitted that this claim was ill-founded and excessive.

88. The Court, making its assessment on an equitable basis and given the information that it has, considers it reasonable to award EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

89. The applicant also claimed EUR 10,000 for the costs and expenses incurred before the Court for his legal representation, to be paid to the bank account of his representative; RUB 4348.8 (EUR 90) for postage and photocopying expenses and RUB 30,790.8 (EUR 630) for travel expenses. To support these claims the applicant submitted a copy of the contract concluded with his lawyer, a time sheet, postage receipts and train tickets.

90. The Government submitted that this claim was ill-founded.

91. According to the Court’s 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, regard being had to the documents in its possession and the above criteria, and bearing in mind that the applicant was granted EUR 850 in legal aid for his representation by Ms N. Alekseyeva, the Court considers it reasonable to award the sum of EUR 1,090 in compensation for the costs and expenses incurred by the applicant in the proceedings before the Court. This comprises EUR 1,000 for legal costs, to be paid to the bank account of the applicant’s representative and EUR 90 for postage expenses, to be paid to the applicant, plus any tax than may be chargeable on the latter amount.

C. Default interest

92. 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. 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 a lack of adequate medical assistance in detention and the absence of an effective domestic remedy in this regard;

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

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

5. Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:

(i) EUR 15,000 (fifteen thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable, to be paid to the applicant;

(ii) EUR 1,090 (one thousand and ninety euros), in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable, of which EUR 1,000 (one thousand euros) to be paid to the bank account of the applicant’s representative and EUR 90 (ninety euros) to be paid to the applicant;

(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;

6. Dismisses the remainder of 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 >> KOLESNIKOVICH v. RUSSIA - 44694/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 289 (22 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/289.html Cite as: [2016] ECHR 289