THIRD SECTION

CASE OF PISKUNOV v. RUSSIA

(Application no. 3933/12)

JUDGMENT

STRASBOURG

4 October 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Piskunov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Luis López Guerra, President,
	Helena Jäderblom,
	Helen Keller,
	Dmitry Dedov,
	Branko Lubarda,
	Alena Poláčková,
	Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 6 September 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 3933/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Nikolay Petrovich Piskunov (“the applicant”), on 23 December 2011.
2.  The applicant was represented by Mr D. Bartenev, 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 had adequate medical care in detention, that the conditions of his detention in remand prison had been appalling, that his pre-trial detention had been unjustified, and that he had had no effective domestic remedies to complain about the quality of the medical care or the conditions of detention.
4.  On 5 February 2014 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.
5.  On 19 February 2015 the aforementioned complaints were communicated to the Government.
6.  On 15 July 2015 the Government submitted a unilateral declaration acknowledging a violation of Article 5 § 3 of the Convention on account of the applicant’s detention between 10 December 2010 and 5 May 2012 and offering compensation for it. The applicant agreed with the Government’s proposal.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
7.  The applicant was born in 1955. He is currently being detained in Krasnoyarsk.
Section 1.01	A.  Criminal proceedings
8.  On 10 December 2010 the applicant was arrested on suspicion of incitement to murder. On the same day the Tsentralniy District Court of Krasnoyarsk authorised his pre-trial detention.
9.  Subsequently the applicant’s detention was extended on a number of occasions in the course of the investigation and trial in view of the gravity of the charges against him and the risks of his absconding, seeking to influence witnesses and reoffending.
10.  On 5 May 2012 the District Court found the applicant guilty of the charges and sentenced him to five years’ imprisonment in a correctional colony. On 4 September 2012 the Krasnoyarsk Regional Court upheld the conviction, but decreased the sentence by two months.
Section 1.02	B.  Medical treatment in detention
11.  During the admission process at remand prison no. IZ-24/1 in Krasnoyarsk the applicant told the medical staff that he had hypertension. The diagnosis was confirmed by a prison doctor, who prescribed him hypotensive medication and regular monitoring of his blood pressure.
12.  In April 2011 the applicant was admitted to Prison Tuberculosis Hospital no. 1 in Krasnoyarsk (“the prison hospital”) for two weeks of inpatient treatment for his hypertension. A chest X-ray showed that he had a mild case of pneumonia and he was also diagnosed with another chronic condition. In the hospital the applicant received the full range of treatments for his conditions.
13.  In June 2011 the applicant had a hypertensive crisis. Several weeks later his lawyer complained to the prison authorities of inadequate medical care.
14.  A medical examination in August 2012 showed that the applicant had recovered from pneumonia and that there were positive developments with his hypertension.
15.  In 2012 and 2013 the applicant was moved between various detention facilities and had routine medical checkups.
16.  In April 2013 he was sent to a minimum security settlement colony. The applicant and other inmates performed repairs to a nearby children’s health camp. The applicant complained only of fatigue and headache to medical staff during that period.
17.  According to the applicant, in May 2013 he started experiencing pain in the chest, pelvic area and testicles. His ability to walk was hindered by severe pain. He took painkillers sent by his relatives. The detention authorities ignored his complaints and on several occasions confiscated the painkillers.
18.   In written submissions, Mr Kh., Ms K. and Ms B., detainees who worked with the applicant in the children’s camp from May 2013, confirmed the above statements. They submitted that the applicant had been seriously ill, had been barely able to walk and had often complained about severe pain. No proper medical examination or treatment had been arranged despite the applicant’s requests for inpatient treatment. Inmates had injected the applicant with painkillers supplied by his relatives.
19.  On 2 September 2013 the applicant asked the head of the detention facility to authorise a medical examination and treatment outside the facility owing to a serious spine and leg condition that had worried him since May 2013. He stated that over the previous three months he had received pain relief medication provided by his relatives, but that his condition had not got better.
20.  Following the applicant’s complaint, he was sent to a civilian clinic in Krasnoyarsk for a magnetic resonance imaging scan (MRI). An examination carried out on 22 January 2014, two days after his admission, revealed a prostate tumour and affection of the bone. A consultation by an oncologist was prescribed.
21.  On the next day the applicant complained about the quality of his treatment to the Federal Service for the Execution of Services in Krasnoyarsk. The complaint was forwarded to the applicant’s ward but was dismissed as ill-founded on 10 February 2014.
22.  On 14 February 2014 the applicant was taken to the Regional Cancer Hospital in Krasnoyarsk, where he was diagnosed with prostate cancer with metastasis to the pelvic bone. According to his medical records, he suffered mild to intense pain.
23.  Six days later a medical panel certified the applicant as having a second-degree disability.
24.  Between 21 March and 3 April 2014 the applicant was examined and treated in the prison hospital. While tests performed in the hospital did not disclose any cancer, hospital officials acted on the diagnosis of 22 January 2014 and prescribed drug treatment for prostate cancer.
25.  On 15 May 2014 the applicant was examined by an oncologist, who recorded his cancer treatment and ordered tests.
26.  In August 2014 the applicant spent two weeks in the prison hospital.
27.  The following month he was seen by doctors and was prescribed further treatment for cancer. The medical staff apparently complied fully with that prescription.
28.  On 19 September 2014 a medical panel concluded that the applicant’s state of health warranted his early release on medical grounds. Ten days later the Sosnovborsk Town Court of the Krasnoyarsk Region dismissed an application for early release, finding that the applicant was receiving the required treatment in detention. On 23 December 2014 the Regional Court quashed the decision on procedural grounds and remitted the case for fresh consideration. The parties did not inform the Court of the outcome of those proceedings. However, given the further developments, it appears that the applicant remained in detention.
29.  On 9 April 2015 the applicant was certified as having a first-degree disability.
30.  In May 2015 he was admitted to the prison hospital for a medical examination and treatment. There are no details regarding his subsequent treatment.
Section 1.03	C.  Conditions of detention in the remand prison
31.  The applicant was detained in the remand prison between 10 December 2010 and 25 May 2015, save for short periods in the prison hospital. The applicant complained of the poor conditions of his detention, including overcrowding. The Government disagreed.
Article II.	II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW
32.  The relevant provisions of domestic and international law on the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015).
33.  The provisions of domestic law establishing the legal avenues for complaints about the quality of medical services are cited in the following judgments: Patranin v. Russia (no. 12983/14, §§ 86-88, 23 July 2015); Reshetnyak v. Russia (no. 56027/10, §§ 35-46, 8 January 2013); Dirdizov v. Russia (no. 41461/10, §§ 47-61, 27 November 2012); and Koryak v. Russia, (no. 24677/10, §§ 46-57, 13 November 2012).
34.  For a summary of the relevant domestic and international law provisions governing conditions of detention see Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 25-58, 10 January 2012).
THE LAW
Article III.	I.  THE GOVERNMENT’S UNILATERAL DECLARATION IN RELATION TO THE ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
35.  By a letter of 15 July 2015, the Government submitted a unilateral declaration with a view to resolving the issue raised under Article 5 § 3 of the Convention. The declaration read as follows:
“I, ..., the Representative of the Russian Federation at the European Court of Human Rights, hereby declare that the Russian Government acknowledge that [the applicant] between 10 December 2010 and 5 May 2012, was detained in violation of Article 5 § 3 of the Convention.
The authorities are ready to pay the applicant the sum of EUR 1,700 as just satisfaction.
The authorities therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as [falling under] “any other reason” justifying striking the case out of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months of the date of notification of the decision taken by the Court, pursuant to Article 37 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and shall be converted into Russian roubles at the rate applicable as at the date of payment. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points.
This payment will constitute the final resolution of the case.”
36.  By a letter of 20 December 2015 the applicant agreed with the terms of the unilateral declaration.
37.  The Court finds that following the unambiguous agreement of the applicant with the terms of the declaration made by the Government, the case should be treated, in substance, as a friendly settlement between the parties (see Bekauri and others v. Georgia (dec.), no. 312/10, ECHR 2015, and Gabură v. Moldova (dec.), no. 12197/08, ECHR 2011). It therefore takes note of the terms of the friendly settlement. Reminding the applicant that the supervision of the execution of the terms of the friendly settlement is the prerogative of the Committee of Ministers (Article 39 § 4 of the Convention), the Court is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.
38.  Accordingly, it is appropriate to strike out of the list the part of the application concerning the lack of relevant and sufficient reasons for the applicant’s detention on remand.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
39.  The applicant complained that the authorities had failed to provide him with adequate medical care and that the conditions of his detention in the remand prison had been appalling. He also alleged that no effective domestic remedies for his grievances had been available to him. The applicant referred to Articles 3 and 13 of the Convention, which read:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Section 4.01	A.  Submissions by the parties
40.  The Government argued that the applicant’s claim should be rejected owing to non-exhaustion of domestic remedies as the applicant had failed to raise his complaint before “prosecution bodies” or a court. Secondly, they questioned the existence of a link between the allegedly inadequate medical treatment and the development of the applicant’s cancer. They also stated that the conditions of detention in the remand prison had fully satisfied the requirements of Article 3 of the Convention. The Government supported their statements with certificates issued by officials at the remand prison describing various aspects of the conditions of detention.
41.  The applicant maintained his complaints. In particular, he drew the Court’s attention to the belated medical examination performed in January 2014, that is to say eight months after the cancer-related pain syndrome had appeared. Furthermore, the applicant doubted the credibility of the Government’s evidence on the conditions of detention.
Section 4.02	B.  The Court’s assessment
(a)	1.  Admissibility
42.  The Court notes that the Government raised an objection in respect of the non-exhaustion of domestic remedies by the applicant. This issue is closely linked to the merits of the applicant’s complaint about the absence of domestic remedies for his grievances. It is therefore necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention.
43.  The Court further notes that the 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.
(b)	2.  Merits
(i)	(a)  Compliance with Article 13 of the Convention
44.  The facts of the case show that the applicant complained to various authorities about the quality of his medical care in detention (see paragraphs 13, 17 and 21 above). The applicant therefore attempted to draw the authorities’ attention to his health and to the quality of the medical care he had been afforded in detention, which in his view had been inadequate. That fact alone has on many occasions been sufficient for the Court to dismiss an objection of non‑exhaustion by the Government (see, for instance, Gurenko v. Russia, no. 41828/10, § 78, 5 February 2013).
45.  The Court has on many occasions established that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention and about the conditions of such detention (see, among many other authorities, Patranin, cited above, § 86; Navalnyy and Yashin v. Russia, no. 76204/11, § 106, 4 December 2014; Gorbulya v. Russia, no. 31535/09, §§ 56-58, 6 March 2014; Reshetnyak, cited above, §§ 65-73; Dirdizov, cited above, § 75; Koryak, cited above, §§ 86-93; and Ananyev and Others, cited above, § 101). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government, including a complaint to the authorities of a detention facility, prosecutor’s office or court, constituted an effective remedy to prevent the alleged violations or stop them from continuing, or to provide the applicant with adequate and sufficient redress for his or her complaints under Article 3 of the Convention.
46.  Having regard to the absence of any new arguments from the Government as regards the existence of effective remedies satisfying the requirements of Article 13 of the Convention in the present case, the Court cannot depart from its well-established case-law on the issue. It sees no legal avenues that would constitute an effective remedy for the applicant’s complaints under Article 3 of the Convention. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies and finds that the applicant did not have at his disposal any effective domestic remedies for his complaints regarding the quality of his medical treatment and the conditions of his detention.
(ii)	(b)  Compliance with Article 3 of the Convention
1)	(i)  General principles
47.  The applicable general principles are set out in Ivko (cited above, §§ 91-95).
2)	(ii)  Application of the above principles to the present case
48.  Turning to the circumstances of the present case, the Court notes the applicant’s argument about the detention authorities’ belated reaction to his cancer symptoms, which appeared in May 2013.
49.  The Court observes that the applicant’s medical case file does not contain any entries recording complaints in 2013 about pain impairing his ability to walk (see paragraph 16 above). However, the written submissions of the applicant’s fellow inmates show that in May 2013 he had started to experience serious pain which affected his ability to move. The injections of painkillers, supplied by relatives with the obvious authorisation of the detention authorities and under their control, did not improve his condition. The applicant’s requests for inpatient treatment were disregarded by the authorities (see paragraph 17 above). In those circumstances, despite the absence of any complaints recorded in the applicant’s medical records, the Court is convinced that the detention authorities had been aware of his health problems since May 2013. The Government also did not contend that the authorities lacked knowledge of the applicant’s condition.
50.  The Court observes that the medical examination of the applicant on account of his leg and back pain was only performed in January 2014, about eight months after the symptoms had appeared. Having regard to the seriousness of the applicant’s condition and the absence of any obstacle to performing a medical examination of the cause of his complaints, the Court finds unacceptable the authorities’ failure to address the problem in a timely fashion. The eight-month delay not only put the applicant’s health at risk of serious, irreparable harm, exacerbating the disease, but also prolonged his suffering from the pain. Without speculating as to whether timely diagnostic and curative measures would have given the applicant a chance of recovery, the Court considers that the continuously negligent attitude of the medical authorities towards the applicant’s condition, which was associated with considerable pain, in itself amounted to a violation of Article 3 of the Convention.
51.  There has therefore been a violation of Article 3 of the Convention on account of the authorities’ failure to meet their responsibility to ensure that the applicant received adequate medical care during his detention.
52.  In the light of the above finding the Court sees no need to examine separately the conditions of the applicant’s detention, which is simply a further aspect of his treatment by the detention authorities and adds nothing to the violation that has already been found (see, mutatis mutandis, Assanidze v. Georgia [GC], no. 71503/01, §§ 177-78, ECHR 2004‑II).
Article V.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
53.  Lastly, the applicant complained about other aspects of his detention on remand and of the unfairness of the criminal proceedings against him.
54.  Having regard to all the material in its possession, and in so far as those complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that that part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
Article VI.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
55.  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.”
Section 6.01	A.  Damage
56.  The applicant claimed 12,000 euros (EUR) in respect of non‑pecuniary damage.
57.  The Government argued that the applicant’s claim was excessive.
58.  The Court, making its assessment on an equitable basis, considers it reasonable to grant the applicant’s claim for non-pecuniary damage in full, awarding him EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
Section 6.02	B.  Costs and expenses
59.  The applicant also claimed EUR 1,440 for the costs and expenses incurred before the Court, to be paid into the bank account of his representative.
60.  The Government argued that the claim was excessive, given the simplicity of the case and the volume of the submissions by the representative.
61.  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, the Court considers it reasonable to award in full the EUR 1,440 claimed, to be paid into the bank account of Mr D. Bartenev, the lawyer who represented the applicant in the proceedings before the Court.
Section 6.03	C.  Default interest
62.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides having regard to the terms of the Government’s declaration and their acceptance by the applicant, to strike the part of the application out of its list of cases in accordance with Article 39 of the Convention in so far as it concerns the complaint under Article 5 § 3 of the Convention about the lack of relevant and sufficient reasons for the applicant’s detention on remand between 10 December 2010 and 5 May 2012;

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

3.  Declares admissible the complaints concerning the lack of adequate medical assistance in detention, the conditions of detention and the alleged absence of an effective domestic remedy to complain about these grievances;

4.  Holds that there has been a violation of Article 13 of the Convention on account of the lack of effective domestic remedies regarding complaints about the quality of medical treatment in detention and the conditions of detention;

5.  Holds that there has been a violation of Article 3 of the Convention on account of the quality of medical treatment in detention;

6.  Holds that no separate examination of the complaint concerning the conditions of detention is necessary under Article 3 of the Convention;

7.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,440 (one thousand four hundred and forty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Luis López Guerra
	Registrar	President