Постановление ЕСПЧ от 15.12.2015 <Дело Ивко (Ivko) против России> (жалоба N 30575/08) [англ.] Часть 2

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THE LAW

 

  1. Preliminary considerations: the locus standi of the applicant’s partner

 

  1. The Court must first address the issue of Ms Yusupova’s entitlement to pursue the application introduced by the applicant.
  2. It reiterates that on 8 April 2015 the applicant’s lawyer informed the Court that the applicant had died on 14 October 2014 and that his partner wished to take his place in the proceedings before the Court.
  3. According to the applicant’s lawyer, Ms Yusupova had been the applicant’s partner for several years up until his death. As is apparent from the letters, certificates and telegram (see paragraphs 51 — 54 above), the Russian authorities accepted Ms Yusupova as the applicant’s partner. The Government did not argue otherwise, leaving the issue of Ms Yusupova’s standing in the proceedings for the Court to decide.
  4. The Court has previously considered similar requests (see, for example, and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 189 — 192, 3 October 2008, and Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII), having examined whether or not the persons wishing to pursue the proceedings were close relatives of the applicant (see Scherer v. Switzerland, 25 March 1994, §§ 31 — 32, Series A no. 287, and v. France (dec.), no. 2476/02, ECHR 2006-III) and whether the rights concerned were transferable. It continued the examination of cases involving pecuniary claims that were transferable to the deceased applicant’s heirs (see, for example, Ahmet  v. Greece, 15 November 1996, § 26, Reports of Judgments and Decisions 1996-V). The Court has also considered whether the particular case at issue involved an important question of general interest transcending the person and the interests of the applicant (see  and Others v. Turkey, no. 55955/00, § 23, 2 February 2006; Marie-Louise Loyen and Bruneel v. France, no. 55929/00, § 29, 5 July 2005; and Karner v. Austria, no. 40016/98, §§ 25 — 27, ECHR 2003-IX).
  5. In a more recent case Ergezen v. Turkey (no. 73359/10, § 29, 8 April 2014) the Court has applied a less restrictive approach, having held that the decisive point was not whether the rights in question were or were not transferable to the heirs wishing to pursue the procedure, but whether the heirs could in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court. It has also stated that human rights cases before the Court generally have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice be done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII).
  6. Turning to the present case, the Court observes that Ms Yusupova wished it to continue with the examination of the application lodged by the applicant. The Court has previously recognised the locus standi of a de facto partner in the situation of the applicant’s death, referring to the existence of a «family» for the purposes of Article 8 of the Convention (see Velikova v. Bulgaria (dec.), no. 41488/98, 18 May 1999). In the case at hand, the evidence convincingly shows that the applicant and Ms Yusupova were in a close relationship which equated to «family ties» (see paragraphs 51 — 54 above). The Court is therefore satisfied that the first condition of close kinship is met.
  7. In the case of Koryak v. Russia (no. 24677/10, §§ 58 — 68, 13 November 2012) the Court allowed the next of kin to continue proceedings before it after the death of the direct victim. The circumstances of the Koryak case and the present one are similar. Both cases concern the quality of medical assistance provided to a seriously ill detainee coupled with the question of the existence of effective domestic remedies. Likewise in the present case the Court considers that Ms Yusupova has a legitimate interest in pursuing the application on his behalf and that respect for human rights as defined in the Convention and the Protocols thereto requires a continuation of the examination of the case.

 

  1. Alleged violation of Articles 3 and 13 of the Convention

 

  1. 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.»

  1. The applicant lastly claimed that he had not had at his disposal an effective remedy for complaining about these 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…»

 

  1. Submissions by the parties

 

  1. The Government put forward two lines of argument.
  2. Firstly, they argued that the applicant’s claim should be rejected owing to «partial non-exhaustion of domestic remedies». They stated that the applicant should have raised his complaint before the domestic authorities, including the detention facilities’ administration, a prosecutor’s office or a court. However, he had only complained to the Federal Service of the Execution of Sentences in the Volgograd Region and had requested early release on medical grounds.
  3. Secondly, they argued that the applicant had been subjected to regular medical examinations whilst in detention and that his health status had been duly monitored by medical specialists, who had provided him with the requisite medical assistance and treatment. In 2008 the applicant’s tuberculosis had been successfully treated. His subsequent refusal to take medication resulted in a rapid deterioration of his health. The Government supported their line of reasoning with certificates showing that facility no. IZ-34/1 had several doctors and that the required medicines were always in stock. The Government did not submit the applicant’s medical records for the periods 18 October 2007 to 19 October 2012, 27 May to 21 October 2013 and 16 December 2013 to 14 October 2014, nor any information concerning the quality of the medical services available in facility no. IZ-34/5 or colony no. IK-154/9.
  4. The applicant argued that the authorities of facility no. IZ-34/5 had not provided him with thorough medical examinations or adequate medical treatment and that he had received no medical attention or medication in colony no. IK-154/9, despite his numerous requests for medical aid and anti-relapse treatment. He had only had access to basic anti-fever drugs. The temporary detention facility had not been equipped to accommodate seriously ill detainees. It had not had a resident doctor and medicines had often been out of stock. There was a delay in his transfer to institution no. LIU-15, by which time his tuberculosis had become barely curable. The applicant also submitted that he had had no access to pulmonary anti-tuberculosis surgery in institution no. LIU-15.
  5. Finally, the applicant argued that his numerous complaints to the authorities, including oral complaints to the detention authorities, had been fruitless and that he had therefore had no effective remedy by means of which to complain about the quality of his treatment.

 

  1. The Court’s assessment
  1. Admissibility

 

  1. 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 that he did not have at his disposal an effective remedy for his complaints concerning the absence 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.
  2. 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.

 

  1. Merits

 

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

(i) General principles

  1. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against a State before the Court to first use the remedies provided by the national legal system. Consequently, States are exempted from answering for their acts before an international body until they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption — reflected in Article 13 of the Convention, with which it has close affinity — that there is an effective remedy available to deal with the substance of an «arguable complaint» under the Convention and to provide appropriate relief. Moreover, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).
  2. An applicant is normally required to have recourse only to those remedies that are available and sufficient to afford redress in respect of the alleged breaches. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Johnston and Others v. Ireland, 18 December 1986, § 22, Series A no. 112). It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting him or her from the requirement.
  3. 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 the machinery for the protection of human rights that 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 v. Turkey, 16 September 1996, §§ 65 — 68, Reports of Judgments and Decisions 1996-IV).
  4. 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 , cited above, §§ 157 — 158, and Wasserman v. Russia (no. 2), no. 21071/05, § 45, 10 April 2008).
  5. 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

  1. Turning to the facts of the present case, the Court notes the Government’s argument that the applicant only «partially exhausted» the domestic remedies. The Court is not convinced by this submission. The documents produced by the applicant, such as copies of letters from various domestic authorities, show that he complained to the Prosecutor’s Office of the Volgograd Region and that the Federal Service for the Execution of Sentences in the Volgograd Region also dealt with his complaints (see paragraph 19 above). The applicant therefore attempted to draw the authorities’ attention to his state of health. This fact alone has on many occasions 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).
  2. The Court further observes that it has on many occasions examined the effectiveness of the domestic remedies suggested by the Government, namely lodging a complaint with the authorities of a detention facility, prosecutor’s office or a court (see, among many other authorities, 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 that 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.
  3. In view of the applicant’s grave health problems and the seriousness of his allegations about the way they were faced, the Court considers that he had an «arguable claim» of inadequate medical care in detention and that the authorities, accordingly, 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.
  4. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies and finds a violation of Article 13 of the Convention.

(b) Alleged violations of Article 3 of the Convention

(i) General principles as to the Court’s evaluation of the facts and burden of proof

  1. In cases in which there are conflicting accounts of events, the Court is inevitably confronted, when establishing the facts, with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof «beyond reasonable doubt». However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is to rule not on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention — to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention — conditions its approach to the issues of evidence and proof. In proceedings before the Court there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).
  2. Furthermore, it should be pointed out that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that — where the events at issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody — strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008). In the absence of such an explanation the Court can draw inferences which may be unfavourable for the respondent Government (see, for instance, Buntov v. Russia, no. 27026/10, § 161, 5 June 2012 and Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002).

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

  1. 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).
  2. 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).
  3. 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 , 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 , 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).
  4. 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 — 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, and Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005). The Court 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 level of 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).
  5. 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).

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

  1. Turning to the circumstances of the present case, the Court will firstly determine the place and period of the applicant’s detention in 2007 — 2009, as these circumstances were disputed between the parties.
  2. Referring to a certificate issued by the head of facility no. IZ-34/1, the Government asserted that from 15 July 2007 to 22 October 2009 the applicant had been detained in that facility. The applicant, however, insisted that from 18 October 2007 to 27 June 2009 he had been detained in facility no. IZ-34/5.
  3. The reliability of the Government’s submissions is compromised by ample evidence submitted by the applicant. Thus, according to the Town Court’s judgment of 28 May 2008, the applicant was arrested and placed in custody on 16 October 2007, and not on 15 July 2007 as the Government argued (see paragraph 8 above). The appeal judgment of 9 September 2008 indicated that on 16 October 2007 the applicant was placed in facility no. IZ-34/5 (see paragraph 9 above). In its letter of 29 April 2008 the Federal Service for the Execution of Sentences in the Volgograd Region also confirmed that from 18 October 2007 he was kept in facility no. IZ-34/5 (see paragraph 19 above). A number of letters in 2008 and 2009 were dispatched from and received by the applicant in facility no. IZ-34/5 (see paragraph 10 above).
  4. In these circumstances the Court accepts that after his arrest on 16 October 2007 and until 27 June 2009 the applicant was detained in facility no. IZ-34/5 and not in facility no. IZ-34/1, as submitted by the Government.
  5. As to whether the applicant was afforded adequate medical care whilst in detention the Court’s task is complicated by the need to assess evidence that calls for expert knowledge in various medical fields. In this connection it emphasises that it is sensitive to the subsidiary nature of its role, and recognises that it must be cautious in assuming the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention, the Court must apply a «particularly thorough scrutiny» (see, mutatis mutandis, Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010 and Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336).
  6. The Court has examined a large number of cases against Russia raising complaints of inadequate medical services afforded to inmates (see, among the most recent ones, Patranin v. Russia, no. 12983/14, 23 July 2015; Gorelov v. Russia, no. 49072/11, 9 January 2014; Budanov v. Russia, no. 66583/11, 9 January 2014; Bubnov v. Russia, no. 76317/11, 5 February 2013; Dirdizov v. Russia, no. 41461/10, 27 November 2012; and Reshetnyak v. Russia, no. 56027/10, 8 January 2013). In the absence of any effective remedy in Russia to handle those complaints, the Court has been obliged to perform a first — hand evaluation of the evidence before it to determine whether the guarantees of Articles 2 or 3 of the Convention had been respected. In that role, paying particular attention to the vulnerability of applicants in view of their detention, the Court has called on the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention.
  7. The Court reiterates the parties’ argument that the applicant had been infected with hepatitis C and had had a history of tuberculosis treatment prior to his arrest in October 2007. That shows that he belonged to a category of detainees who require special medical attention in order to prevent a relapse of their tuberculosis. In 2009 his tuberculosis recurred, he started coughing up blood, and several years later he died from tuberculosis whilst in detention. These circumstances seen in their entirety amounted to a prima facie claim of inadequate medical assistance. The fact that at the relevant period the applicant was under the authorities’ control, and was therefore particularly vulnerable, shifted the burden of proof onto the respondent Government. The latter had to show that the authorities had taken adequate steps to safeguard the applicant’s health and well-being by providing him with adequate medical care.
  8. However, despite the Court’s request to be provided with medical documents covering the entire period of the applicant’s detention, the Government failed to provide any documents relating to the applicant’s treatment in facility no. IZ-34/5 and colony no. IK-154/9. The Court therefore accepts the applicant’s allegations concerning the absence of regular medical examinations and anti-relapse treatment in those facilities for a period of two years from October 2007 to October 2009. This in itself casts serious doubts on the authorities’ fulfilment of their obligations under Article 3 of the Convention.
  9. However, the Court considers it necessary to look more closely at the quality of the medical treatment the applicant received in institution no. LIU-15.
  10. The Court notes that on 29 October 2012, the date of the applicant’s first admission to institution no. LIU-15, he was subjected to a number of basic clinical tests and examinations. He was placed on a drug regimen the same day. However, despite the authorities’ knowledge of the applicant’s long-term affliction with tuberculosis and his remaining a smear-positive — and thus tuberculosis-active — patient for an unusually long period, it was not until 11 February 2013, that is to say over five years after his arrest and the authorities’ resultant responsibility to address the applicant’s health issues, that a drug susceptibility test was performed for the first time (see paragraph 33 above). That test is the primary requirement established by the World Health Organization for the correct diagnosis and treatment of all previously treated tuberculosis patients, such as the applicant, given the particularly high risk they run of suffering from drug-resistant tuberculosis. The test would not only have allowed the efficient finalising of diagnostic procedures and allocation of the applicant’s case to a standard treatment category, but would also have guided the choice of appropriate regimen adjustments in line with the results of the test. The delay in conducting the applicant’s test was a breach of the WHO’s recommendations and risked depriving the treatment the applicant received of its major therapeutic effects (see Kushnir v. Ukraine, no. 42184/09, § 146, 11 December 2014; Reshetnyak v. Russia, no. 56027/10, § 86, 8 January 2013; and Pakhomov v. Russia, no. 44917/08, § 67, 30 September 2010).
  11. While the Court finds the absence of proper and timely testing for the purpose of establishing the most adequate treatment formula to be the major flaw in the medical care afforded to the applicant whilst in detention, it is also mindful of another serious deficiency in the medical services the applicant received in institution no. LIU-15. Although the authorities were aware of his hepatitis C, they took no steps to consider whether the applicant’s treatment regimen was compatible with his liver disease, even when the applicant directly asked them to do so. The first liver function test was not performed until 8 February 2013 (see paragraph 33 above), that is to say more than three months after the initiation of the applicant’s new chemotherapy regimen and more than five years after the authorities became aware of his medical condition. The applicant was prescribed hepatoprotectors at the end of October 2013 (see paragraph 41 above). Such reluctance on the part of the authorities ran counter to the WHO recommendation to perform liver function tests at the start of and during tuberculosis treatment, and to give fewer hepatotoxic drugs to patients with serious liver diseases (see paragraph 63 above).
  12. The Court also notes the Government’s argument that the deterioration in the applicant’s health in institution no. LIU-15 was aggravated by his refusal to take some of the prescribed medicines. However it does not, in any event, considers that as decisive. The documents provided by the Government, in particular the epicrisis of 27 February 2013 and the regime violation record, drawn up on 6 March 2013, made no mention of the duration of the applicant’s refusal to take drugs or specific instances or dates when such refusals had been recorded (see paragraph 34 above). The Court is also mindful of the legitimacy of whatever refusal on the part of the applicant, given that, as is apparent from the documents presented, he had cited his failing liver and the need to address his hepatitis C as the reason underlying his refusal. Moreover, the Court did not find any evidence in the documents presented that, having encountered the applicant’s refusal, the authorities provided supervision and support to assist him in completing the full course of treatment. In any event, the fact that on some occasions in February and March 2013 the applicant did indeed refuse to take certain drugs cannot explain the rapid deterioration of his health throughout the entire period of his detention and exonerate the authorities for having failed to provide necessary medical assistance.
  13. In these circumstances, the Court finds that the aforementioned deficiencies in the applicant’s treatment during his detention between 16 October 2007 and 15 May 2013 are sufficient to lead to the conclusion that the authorities failed to take the steps necessary to safeguard his health and well-being, and to provide him with adequate medical assistance.
  14. The Court reiterates that the applicant was released on 15 May 2013 and spent the subsequent two months of his detention in a civilian hospital undergoing treatment for tuberculosis. From the date of his renewed arrest in July 2013 until 21 October 2013 the applicant — who at that time was suffering from a severe and extremely advanced stage of tuberculosis and was in need of a comprehensive and complex in-patient treatment — had no access to the requisite medical aid (see paragraph 39 above). The Court finds it unacceptable that for those three months he was left without vital medical assistance that may have enabled him to fight the illnesses that were threatening his life. The Court has not been persuaded that there was no causal link between the lack of treatment in that period and the subsequent rapid deterioration of the applicant’s health leading to his death.
  15. The Court was not provided with any information describing the applicant’s treatment in institution no. LIU-15 during the last months of his life. As a result it is not in a position to properly assess the quality of the medical services afforded to the applicant during that period. However, it appears that, by that time, the applicant’s health had been undermined to such an extent that recovery was barely possible.
  16. However even without the above conclusion, the Court’s finding of serious deficiencies in the applicant’s treatment during the major period of his detention would still remain. The applicant did not receive comprehensive, effective and transparent medical treatment for his illness whilst he was in detention and the Court finds that, as a result of this lack of adequate medical treatment, the applicant was exposed to prolonged mental and physical suffering that diminished his human dignity. The authorities’ failure to provide the applicant with the medical care he needed amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convection.
  17. Accordingly, the Court concludes there was a violation of Article 3 of the Convention.

 

III. Application of Article 41 of the Convention

 

  1. 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.»

 

  1. Damage
  1. Pecuniary damage

 

  1. The applicant claimed 20,000 euros (EUR) in respect of pecuniary damage caused as a result of the expenses incurred by his relatives in supporting him whilst in detention and on account of the anti-tuberculosis surgery which arguably should have been performed to improve his health.
  2. The Government submitted that the claim was unsubstantiated.
  3. Taking into account the fact that the applicant did not provide the Court with evidence in support of this claim, the Court is unable to accept it.

 

  1. Non-pecuniary damage

 

  1. The applicant claimed EUR 50,000 in respect of non-pecuniary damage.
  2. The Government submitted that this claim was excessive.
  3. The Court, making its assessment on an equitable basis, considers it reasonable to award EUR 20,000 in respect of non-pecuniary damage, to be paid in full to Ms Yusupova, plus any tax that may be chargeable on that amount.

 

  1. Costs and expenses

 

  1. The applicant also claimed EUR 100 for postal services, photocopying and telephone expenses to be paid directly to him and EUR 3,750 for legal costs to be paid into the bank account of his representative.
  2. The Government argued that the claim was ill-founded.
  3. 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 Mr E. Markov, the Court considers it reasonable to award the sum of EUR 2,000 for costs and expenses incurred in the proceedings before the Court, of which EUR 100 is to be paid to Ms Yusupova and EUR 1,900 into the bank account of Mr E. Markov, the lawyer who represented the applicant in the proceedings before the Court.

 

  1. Default interest

 

  1. 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 that the applicant’s partner, Ms Yusupova, has locus standi in the proceedings;
  2. 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;
  3. 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;
  4. Holds that there has been a violation of Article 13 of the Convention;
  5. Holds that there has been a violation of Article 3 of the Convention;
  6. 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 20,000 (twenty thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable, to be paid to Ms Yusupova;

(ii) EUR 2,000 (two thousand euros), in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable to Ms Yusupova of which EUR 100 (one hundred euros) is to be paid to Ms Yusupova and EUR 1,900 (one thousand and nine hundred euros) is to be paid to Mr E. Markov, the lawyer who represented the applicant in the proceedings before the Court;

(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;

  1. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

 

Done in English, and notified in writing on 15 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President

Stephen PHILLIPS Registrar

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