Постановление ЕСПЧ от 13.12.2016 <Дело Думикян (Dumikyan) против России> (жалоба N 2961/09) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF DUMIKYAN v. RUSSIA
(Application no. 2961/09)
JUDGMENT <*>
(Strasbourg, 13.XII.2016)
FINAL

(13.III.2017)
———————————
<*> This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Dumikyan v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
Helena ,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova,
Alena ,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 22 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

 

  1. The case originated in an application (no. 2961/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by an Armenian national, Mr Mkptych Semenovich Dumikyan («the applicant»), on 11 December 2008.
  2. The applicant was represented by Mr G. Isakayev, a lawyer practising in Kurgan. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The Armenian Government did not make use of their right to intervene (Article 36 § 1 of the Convention).
  3. The applicant alleged, in particular, that the conditions of his detention in a remand prison had been appalling, that he had not had access to adequate medical care whilst in detention, and that his detention between 12 August and 23 September 2008 had been unlawful and unjustified and therefore in breach of Article 5 § 1 of the Convention.
  4. On 5 April 2012 the application was communicated to the Government.

 

THE FACTS

  1. The circumstances of the case

 

  1. The applicant was born in 1970 in Armenia. Until his arrest in 2008 he lived in Kurgan, Russia. On 20 September 2012 the Sverdlovsk Region office of the Federal Migration Service ordered his deportation to Armenia. It seems that the deportation order was executed on 11 October 2012.

 

  1. Circumstances leading to the applicant’s arrest

 

  1. On 3 August 2008 the applicant, while under the influence of alcohol, took a car without the owner’s consent and crashed into a tree. As a result of this accident he sustained multiple injuries, including a thighbone fracture, a dislocated hip and facial wounds.
  2. The applicant was taken by ambulance to Kurgan Town Hospital where he was admitted to an intensive care unit. He was connected to a medical ventilator and subjected to emergency anti-shock treatment. The doctors sutured his wounds. A metal pin for skeletal traction was inserted through the heel bone of his broken leg and the applicant was placed in a special metal frame with weights attached to his injured leg.
  3. Several days later his condition improved and he was transferred to a trauma department, where he remained bedridden in a skeletal traction frame. Osteosynthesis surgery was to be performed in due course.
  4. On 6 August 2008 the police opened a criminal case into car theft.
  5. It appears that during the investigation the authorities learned that the applicant was wanted by the authorities of the Republic of Belarus for a murder allegedly committed in 2003 in Minsk.
  6. A police investigator asked the attending doctor whether the applicant could be discharged from hospital and transferred to a detention facility.
  7. On an unspecified date the doctor informed the investigator that the applicant was in need of inpatient treatment on account of multiple injuries, including facial injuries, a dislocated hip and a thighbone fracture. Citing the seriousness of his condition the doctor noted that the applicant could not be transported to a court or police station. The doctor stated that police detention centres and remand prisons in Kurgan were unable to ensure the appropriate medical care to the applicant.
  8. On 8 August 2008 the investigator reported the content of the above letter to his superior.
  9. Four days later, upon a request from an investigator, a medical expert commenced an examination of the applicant to assess the seriousness of his injuries. Without informing the hospital administration and without having received the results of the expert examination, the police arrested the applicant and took him to remand prison no. IZ-45/1 in Kurgan. It does not seem that any special arrangements for the applicant’s transport were made.
  10. It was noted in the expert report completed on 3 September 2008 that the applicant’s injuries were of «medium» seriousness.

 

  1. Detention and conviction
  2. Detention pending extradition

 

  1. On 13 August 2008 the Kurgan Town Court, at the request of the Kurgan prosecutor and in the absence of the applicant, ordered his detention pending the receipt of an extradition request from the Belarusian authorities. That ruling was based on Article 466 of the Code of Criminal Procedure of Russia («the CCrP») and Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters («the Minsk Convention»).
  2. On 21 August 2008 the Kurgan Regional Court quashed the order of 13 August 2008 in view of the applicant’s absence from the hearing before the Town Court. The Regional Court remitted the issue for fresh consideration.
  3. A week later, this time after hearing evidence from the applicant, the Town Court, on the basis of the same legal provisions, ordered his detention until receipt of the extradition request from the Republic of Belarus.
  4. On 4 September 2008 the Regional Court upheld the applicant’s detention on appeal.
  5. According to the applicant, only on 14 October 2008 did the Prosecutor General’s Office inform the competent Belarusian authorities of the applicant’s arrest.
  6. The General Prosecutor of the Republic of Belarus requested the applicant’s extradition.
  7. On 25 August 2009 the Russian Prosecutor General’s Office ordered the applicant’s extradition to stand trial in Belarus.
  8. According to the applicant, in March 2010 he was extradited to the Republic of Belarus.
  9. On 23 March 2010 the Belarusian authorities closed the criminal case due to the absence of corpus delicti in the applicant’s actions. He was then returned to Russia.

 

  1. Detention pending investigation into the car accident

 

  1. In the meantime, on 29 August 2008, in the context of the criminal investigation into car theft, the Kurgan Town Court ordered the applicant not to leave Kurgan.
  2. On 23 September 2008 the Town Court changed the measure of restraint to detention pending investigation. The decision was based on the seriousness of the charges, the fact that the applicant had been on the run and had no permanent residence in Russia. The Regional Court upheld that detention order on appeal.
  3. On 22 November 2008 the Town Court extended the applicant’s detention until 5 December 2008, citing the seriousness of the charges and the lack of a permanent residence in Russia.
  4. On 4 December 2008 and 4 January 2009 the Town Court again extended the applicant’s detention until 5 and 30 January 2009, respectively. In addition to the previously employed arguments, the detention orders were held to be justified by the necessity to complete the investigation. The latest detention order was upheld on appeal by the Regional Court on 15 January 2009.

 

  1. Conviction

 

  1. On 27 March 2009 the Kurgan Town Court convicted the applicant of car theft and sentenced him to four years’ imprisonment in a correctional colony.
  2. On 26 May 2009 the Regional Court upheld the conviction and sentence, but amended the type of the detention facility where the applicant was to serve his sentence to a settlement colony.

 

  1. Medical treatment and the conditions of detention

 

  1. It is clear from entries made by civilian doctors in the applicant’s medical history on 12 August 2008, the day of his arrest, that he was in satisfactory health; his body temperature, which had fluctuated for several days, was 37.7 °C; the pain syndrome was decreasing; his stitches were dry; and no signs of inflammation were present. The metal pin remained in his leg. In the discharge summary drafted on account of the applicant’s arrest, «continued medical treatment» and crutches were prescribed. The attending doctor explicitly noted that the patient had been taken from the hospital without the consent of the chief doctor.
  2. On admission to the remand prison the applicant was examined by a feldsher (medical assistant), who recorded the visible bodily injuries. No medical tests were performed and no treatment was prescribed. The applicant was not provided with any mobility aid devices, such as a wheelchair, crutches or a walking stick.
  3. It was not disputed by the parties that the next day the applicant had been placed in a cell designed to accommodate a maximum of four inmates. The cell measured 15.4 sq. m. On 13 August and between 15 and 19 August 2008 the applicant had to share that cell with seven other inmates, with each inmate thus having no more than 1.9 sq. m of floor space. Several inmates, including the applicant, had no places to sleep.
  4. According to the applicant, in the remand prison he experienced a leg pain, nausea and loss of consciousness.
  5. Medical entries show that the applicant was seen by a prison doctor for the first time on 18 August 2008, in response to his complaints of pain, nausea and vertigo. After a visual examination, the doctor ordered the transfer of the applicant to Regional Anti-Tuberculosis Prison Hospital no. OF-73/1 in Kurgan («the prison hospital») «for treatment and skeletal traction». The transfer was performed the next day.
  6. In the prison hospital several medical tests were performed. Owing to technical problems the applicant could not undergo an X-ray examination of his legs ordered by a doctor. He was seen by a surgeon and a neurologist.
  7. The surgeon, having considered the time that had passed from the termination of the skeletal traction, removed the metal pin from the applicant’s leg. A walking stick was prescribed.
  8. The neurologist diagnosed the applicant with vegetative-vascular dystonia and prescribed a month-long drug regimen.
  9. The applicant was discharged from hospital on 27 August 2008 in a «satisfactory condition».
  10. The medical documents in the Court’s possession cover the period up to 21 May 2009. They show that at that time the applicant was seen by the prison doctor on account of his chronic peptic and liver conditions. It does not appear that he underwent any medical examination or treatment related to the leg condition.
  11. As to the conditions of the applicant’s detention during that period, the Government submitted that the applicant had been transferred between several cells of the remand prison, some of which were overcrowded. In particular, between 30 September and 8 October 2008, between 26 January and 19 March, 24 March and 10 April, 11 April and 2 June 2009 the applicant was afforded less than 2.7 sq. m of floor space, and occasionally less than 2 sq. m. According to the applicant, the cells were poorly ventilated, had non-partitioned toilets and were infested with bugs, mice and lice.
  12. On 2 June 2009, the applicant was sent to serve his sentence in a settlement colony. He was released on 22 September 2012, after having served his sentence in full.
  13. According to him, he continued to walk with a limp after the release, because the broken leg had knitted in a wrong position.

 

  1. Relevant domestic law and international documents
  2. Conditions of detention

 

  1. The applicable provisions of domestic law and international documents are cited in the cases of Mela v. Russia (no. 34044/08, §§ 30 and 31, 23 October 2014) and Sudarkov v. Russia (no. 3130/03, § 30, 10 July 2008).

 

  1. Medical care afforded to detainees

 

  1. 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).

 

  1. Detention pending extradition proceedings

 

  1. For the summary of relevant domestic and international law on the detention pending extradition, including Article 466 of the CCrP and Article 61 of the Minsk Convention, see the case of Nasrulloyev v. Russia (no. 656/06, §§ 48 — 56, 11 October 2007).

 

THE LAW

  1. The Government’s request to strike out a part of the application under Article 37 of the Convention

 

  1. The Government submitted a unilateral declaration concerning issues raised under Articles 3 and 5 of the Convention which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1). The Court rejects the Government’s request to strike out a relevant part of the application and will accordingly pursue its examination of the merits of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003-VI).

 

  1. Alleged violation of Article 3 of the Convention on account of the conditions of detention

 

  1. The applicant complained that the conditions of his detention in the remand prison from 12 August 2008 to 2 June 2009 had been incompatible with Article 3 of the Convention, which reads as follows:

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

 

  1. Submissions by the parties

 

  1. In their observations of 19 October 2012 the Government acknowledged that the conditions of the applicant’s detention in the remand prison had been incompatible with the requirements of Article 3 of the Convention. In the further observations of 15 February 2013 they confirmed that position.
  2. The applicant maintained his complaint.

 

  1. The Court’s assessment
  2. Admissibility

 

  1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

  1. Having regard to the documents in the Court’s possession as well as to the Court’s findings in many similar cases concerning conditions of detention in Russian remand prisons (see Mela, cited above, §§ 61 — 69, 23 October 2014; Tsarenko v. Russia, no. 5235/09, §§ 47 — 53, 3 March 2011; Gorbulya v. Russia, no. 31535/09, §§ 64 — 73, 6 March 2014; Malyugin v. Russia, no. 71578/11, §§ 20 — 23, 13 March 2014; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 143 — 48, 161 — 62 and 166), it considers that the conditions of the applicant’s detention in the remand prison amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

 

III. Alleged violation of Article 3 of the Convention on account of the quality of medical treatment

 

  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. Submissions by the parties

 

  1. The Government submitted that the applicant’s medical condition in detention had not called for skeletal traction and that in custody he had received adequate medical care. In particular, several days after his arrest he had been transferred to a prison hospital for medical examination and treatment. He had been discharged from hospital in satisfactory condition and had thereafter received the prescribed treatment in full.
  2. The applicant alleged that the interruption of the skeletal traction after his arrest had run contrary to the treatment needed for his medical condition and doctors’ recommendations. He stated that in the first week of his detention he had not received any painkillers to relieve the acute leg pain. The lack of skeletal traction had caused the broken bone to mend badly and resulted in a permanent limp.

 

  1. The Court’s assessment
  2. Admissibility

 

  1. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

(a) General principles

  1. The applicable general principles were recently summarised in the cases of Blokhin v. Russia [GC] (no. 47152/06, §§ 135 — 40, ECHR 2016), and Ivko (cited above, §§ 91 — 95).

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

  1. The Court reiterates, being sensitive to the subsidiary nature of its role, that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether an applicant in fact required a particular treatment or whether the choice of treatment methods appropriately reflected the applicant’s needs (see Ukhan v. Ukraine, no. 30628/02, § 76, 18 December 2008, and Sergey Antonov v. Ukraine, no. 40512/13, § 86, 22 October 2015). However, having regard to the vulnerability of applicants in detention, it is for the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention (see Sergey Antonov, ibid.).
  2. In the present case the applicant’s insistence on the necessity of that medical procedure was primarily based on the medical opinion of his attending doctor (see paragraph 12 above). In their turn, the Government pointed to the fact that skeletal traction had been explicitly recommended neither in the discharge summary, nor by the surgeon of the prison hospital (see paragraphs 31 and 37 above).
  3. The Court notes that a few days before the applicant’s arrest his attending doctor opposed the interruption of his treatment. It is evident that the treatment had not been completed on 12 August 2008, the day of the applicant’s arrest, as he still remained under skeletal traction. Even if the discharge summary did not explicitly mention skeletal traction, the doctor’s order prescribing the «continuation of the treatment» could hardly be interpreted in any other way than the need to continue that treatment, as it was the method used to treat the applicant. This is particularly so when one takes into account that treatment with skeletal traction is of a continuous nature. The Government cited the prison surgeon’s decision to remove the metal pin from the applicant’s bone as evidence that that procedure was not necessary. However, that decision was made in the absence of an X-ray examination and a significant amount of time after the interruption of the therapy. Even if skeletal traction was unnecessary at that time the Court finds that it was exigent at the time of the applicant’s arrest.
  4. In addition to the interruption of the skeletal traction itself, the Court notes the manner in which the applicant was arrested and taken to the remand prison. In particular, it notes that the police, in blunt disregard of the opinion of the attending doctor regarding the applicant’s serious medical condition, and without introducing any special arrangements for his transport, interrupted his therapy and took him to the prison. In the following days the applicant, whose grave health condition was evident to the authorities, was not only left without medical attention and assistance, but also placed in a severely overcrowded cell without a sleeping place. He was provided neither with the prescribed crutches nor with painkillers.
  5. The Court notes that a week later the remand prison’s authorities ensured the applicant’s admission to the prison hospital. However, that belated measure was not capable of remedying the aforementioned major failures on the part of the authorities. The applicant was not subjected to a key medical test — an X-ray examination (see paragraph 36 above). The surgeon did not consider whether it was necessary to remedy the interruption of the therapy. He also failed to assess whether the lack of the treatment at the initial, most crucial, stage of the therapy had led to certain health issues, such as possible misunion of the bones in need of correction or closer medical attention. Furthermore, no follow-up on the necessity of osteosynthesis, prescribed by civilian doctors, was carried out by the prison medical staff.
  6. Lastly, the Court cannot overlook the fact, which was not disputed by the Government, that after the medical treatment received in detention the applicant developed a perpetual limp and had constantly to use a walking stick.
  7. Assessing the facts of the case as a whole, having regard in particular to the cumulative effects of the inadequate medical care and the inappropriate conditions in which the applicant was held throughout his detention, which clearly had a detrimental effect on his health and well-being (see Kalashnikov v. Russia, no. 47095/99, § 98, ECHR 2002-VI), the Court considers that the nature, duration and severity of the ill-treatment to which the applicant was subjected are sufficient to be qualified as inhuman and degrading (see and v. Poland, no. 32798/02, § 137, 26 July 2011; Labzov v. Russia, no. 62208/00, § 45, 16 June 2005; Mayzit v. Russia, no. 63378/00, § 42, 20 January 2005; and Egmez v. Cyprus, no. 30873/96, § 77, ECHR 2000-XII).
  8. There has accordingly been a violation of Article 3 of the Convention on account of the quality of the medical treatment in detention.

 

  1. Alleged violation of Article 5 § 1 of the Convention

 

  1. The applicant complained under Article 5 of the Convention that his detention between 12 August and 23 September 2008 pending extradition proceedings had been arbitrary and unlawful. The applicable provisions of that Article read as follows:

«1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.»

 

  1. Submissions by the parties

 

  1. The Government acknowledged that the applicant’s detention from 12 August to 23 September 2008 had been unlawful and thus in breach of Article 5 § 1 of the Convention.
  2. The applicant maintained his complaints.

 

  1. The Court’s assessment
  2. Admissibility

 

  1. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

  1. Having regard to the Government’s admission, as well as to its earlier findings in cases raising a similar issue (see, for instance, Yefimova v. Russia, no. 39786/09, § 261, 19 February 2013; Abdulkhakov v. Russia, no. 14743/11, §§ 170 — 73, 2 October 2012; and Nasrulloyev, cited above, § 77, 11 October 2007), the Court finds that the applicant’s detention between 12 August and 23 September 2008 was not covered by any domestic legal provision clearly establishing the grounds for his detention and the procedure and the time-limits applicable to that detention pending the receipt of the extradition request.
  2. There has therefore been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention during the mentioned period.

 

  1. Other alleged violations of the Convention

 

  1. Lastly, the applicant complained under Articles 13 and 14 of the Convention of the lack of effective remedies to complain of the unfairness of his criminal proceedings and of the discrimination against him on the grounds of his ethnic origin and nationality.
  2. However, having regard to all the material in its possession, and in so far as these 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 this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

 

  1. 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
  2. Pecuniary damage

 

  1. The applicant claimed 578 euros (EUR) in respect of pecuniary damage on account of his allegedly unlawful extradition to the Republic of Belarus in 2012.
  2. The Government argued that the claim was irrelevant to the circumstances of the case.
  3. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, it therefore rejects this claim.

 

  1. Non-pecuniary damage

 

  1. The applicant claimed EUR 450,000 in respect of non-pecuniary damage.
  2. The Government stated that the claim was excessive.
  3. The Court, making its assessment on an equitable basis, considers it reasonable to award the applicant EUR 19,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

 

  1. Costs and expenses

 

  1. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court.
  2. The Government argued that the applicant had not provided any evidence in support of his claim to show that those expenses had indeed been incurred.
  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 lack of relevant documents and the above criteria, the Court rejects the applicant’s claim for costs and expenses.

 

  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. Rejects the Government’s request to strike out of the list a part of the application concerning issues raised under Articles 3 and 5 of the Convention;
  2. Declares the complaints concerning the conditions of detention in the remand prison, the quality of medical treatment in detention and the compatibility of the applicant’s detention with the requirement of Article 5 § 1 of the Convention admissible and the remainder of the application inadmissible;
  3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the remand prison;
  4. Holds that there has been a violation of Article 3 of the Convention on account of the quality of medical treatment in detention;
  5. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention between 12 August and 23 September 2008;
  6. 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 EUR 19,500 (nineteen thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant on that amount. This amount is to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

 

Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President
Stephen PHILLIPS Registrar

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