CASE OF SERGEY DENISOV v. RUSSIA
(Application no. 21566/13)
8 October 2015
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 Sergey Denisov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,
Mirjana Lazarova Trajkovska,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 15 September 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 21566/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Pavlovich Denisov (“the applicant”), on 11 March 2013.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that he had not benefited from effective medical care whilst in detention, that he had not had effective avenues through which to complain about a violation of his right to proper medical services, and that his pre-trial detention had been unreasonably long.
4. On 1 October 2013 the complaints concerning the lack of adequate medical assistance and absence of effective avenues to complain thereof, as well as the complaint about the length of the applicant’s pre-trial detention, were communicated to the Government and the remainder of the application was declared inadmissible.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1971 and lives in Krasnoyarsk.
A. Arrest and detention
6. On 13 August 2012 the applicant was arrested on suspicion of having attempted to sell a large quantity of heroin. Two days later the Sverdlovskiy District Court of Krasnoyarsk authorised his placement in custody for two months. The District Court reasoned that the applicant was being charged with a particularly serious criminal offence, which he had allegedly committed not long after having served a prison sentence after a previous conviction for a similar crime. The court also took into account the lack of a stable income as the applicant worked as an estate agent. These circumstances were interpreted by the District Court as evidence of the likelihood that the applicant might abscond, re-offend or pervert the course of justice. The applicant’s arguments that he was employed, that he was the breadwinner for a child who was still a minor and that he had a permanent place of residence did not convince the court. Nor did the court find that the applicant’s poor health warranted his release, given that he was able to receive professional medical assistance in detention.
7. The applicant did not appeal against the detention order.
8. On 15 August 2012, the applicant was admitted to detention facility no. IZ-24/1.
9. On 12 October 2012 the Sverdlovskiy District Court accepted the investigator’s request for an extension of the applicant’s detention until 12 December 2012. The court again found that, given his criminal history and the gravity of the charges, the applicant was likely to abscond, re-offend or tamper with witnesses. The District Court did not find any evidence indicating that the applicant was not fit to remain in custody or was not receiving the necessary medical assistance in detention.
10. The extension order of 12 October 2012 was upheld on appeal by the Krasnoyarsk Regional Court, which fully endorsed the District Court’s arguments. The Regional Court also noted that the applicant and his lawyer failed to submit any evidence in support of their arguments alleging a lack of medical assistance in detention.
11. Another extension of the applicant’s detention until 12 February 2013 followed on 11 December 2012, when the Sverdlovskiy District Court found that the circumstances warranting his arrest persisted. The court once again dismissed the argument concerning the applicant’s poor health and lack of proper medical assistance in detention.
12. On 10 January 2013 the Krasnoyarsk Regional Court upheld the decision on appeal, having been fully convinced by the District Court’s reasoning. As to the applicant’s argument about his poor state of health, the Regional Court reasoned:
“Despite the accused’s argument, [the court] did not establish any circumstances related to his health or any other personal grounds precluding his detention in the conditions consistent with a temporary detention facility. Amongst the case-file materials there is no medical report showing that [the applicant] was suffering from a serious illness included in the List of Serious Illnesses precluding Detention of Suspects and Accused Persons, as adopted by decree of the Government of the Russian Federation on 14 January 2011. The [District Court] did not examine any such report when it issued its decision [of 11 December 2012].
Moreover, [the applicant’s] argument that he was suffering from a serious life-threatening illness was not supported by any evidence contained in the file, even though the defence would have had ample opportunity to provide such evidence if it had existed.
If a medical commission issues a medical report examining the necessity for [the applicant’s] continued detention, an investigator will immediately examine that issue.”
13. On 21 January 2013 the applicant was served with the bill of indictment, having been charged with the sale, on a number of occasions, of a particularly large quantity of drugs within an organised group for the purpose of subsequent resale.
14. On 5 February 2013 the Leninskiy District Court of Krasnoyarsk extended the applicant’s detention until 11 May 2013, finding that the circumstances which had warranted the applicant’s arrest had not changed. The Court once again found that, given his criminal history and the gravity of the current charges, the applicant was likely to abscond, re-offend or tamper with witnesses.
15. The applicant lodged an appeal on points of law, but this was dismissed on 2 July 2013.
16. On 8 May 2013, the detention was further extended by the Leninskiy District Court until 11 July 2013. The court once again dismissed the argument concerning the applicant’s poor health and relied on the gravity of the charges and the applicant’s criminal record to support the finding of a risk of the applicant’s re-offending.
17. On 10 July 2013 the Leninskiy District Court extended the detention until 13 August 2013. The reasoning employed by the court was similar to that of the previous detention orders.
18. On 7 August 2013 the applicant was released against an undertaking not to leave his town, having regard to the fact that the investigation was closed, the applicant completed the reading of the file and the case was remitted to the trial court. On 24 March 2014 he was convicted of four counts of drug trafficking committed with an organised group and involving a particularly large amount of drugs.
B. Applicant’s state of health
19. In 2001 the applicant was diagnosed with an HIV infection.
20. A medical certificate issued on 18 October 2012 by a physician from detention facility no. IZ-24/1 where the applicant was detained indicated that the applicant was suffering from HIV infection in stage 4A, penile cancer of the first degree and chronic hepatitis C (HCV).
21. The applicant argued that upon his arrest on 13 August 2012 antiretroviral drugs had been taken from him. The Government disputed that allegation.
22. The Government provided the Court with handwritten and typed versions of the applicant’s medical records, setting out the applicant’s medical history and, in particular, the development of his HIV infection. On 16 August 2012, that is on the day following his admission to detention facility no. IZ-24/1, the applicant had been examined by a medical panel which had found him HIV-positive. On the following day the applicant had been prescribed Combivir, a fixed dose combination of the drugs lamivudine (Epivir) and zidovudine (Retrovir), and Kaletra, a fixed dose combination of lopinavir and ritonavir. The handwritten medical records show that during the entire period of his detention the applicant regularly received those drugs. He was also prescribed a special diet.
23. During his detention the applicant had been monitored regularly in relation to his HIV infection. The CD4 cell count tests carried out on 24 October 2012, 28 March and 2 July 2013 had revealed a slight, but steady increase of CD4 cells to 579, 618, and 644 cells/mm3, respectively.
24. On an unspecified date the applicant informed the medical personnel of the detention facility that in 2010 he had been diagnosed with penile cancer. On 25 April 2013 he was examined by the head of the medical department with regard to this complaint. The doctor did not detect any visible symptoms. However, the applicant was referred for examination by an oncologist and an infectious disease specialist at regional tuberculosis hospital no. 1.
25. On 17 May 2013 the applicant was seen by the head of the oncological department at regional tuberculosis hospital no. 1. The doctor suggested a biopsy, which the applicant refused to undergo.
26. The case file contains no information as to whether the applicant received any treatment in relation to his hepatitis C.
C. Complaints to the authorities
27. On 16 November 2012 the applicant complained to the Regional Prosecutor that antiretroviral drugs had been taken from him upon his arrest on 13 August 2012.
28. The applicant also sent a written request to the Investigating Department of the Krasnoyarsk Region seeking a forensic medical expert examination to determine whether he was suffering from a condition which, under Russian penitentiary rules, would preclude his detention on remand.
29. On 6 December 2012 a deputy prosecutor of the Sverdlovsk District prosecutor’s office sent a letter to the applicant informing him that the courts had already examined his arguments pertaining to his state of health while determining the issue of his further detention on remand. The deputy prosecutor pointed out that the courts had not established that the applicant was suffering from any serious illness precluding his detention on remand.
30. On 28 December 2012 the deputy prosecutor sent another letter to the applicant. The content of the letter was similar to that of the previous one.
II. RELEVANT DOMESTIC LAW
A. Provisions governing the quality of medical care afforded to detainees
31. Russian law gives detailed guidelines governing the provision of medical assistance to detained individuals. These guidelines, laid down in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice on the Organisation of Medical Assistance to Individuals Serving Sentences or Remanded in Custody (“the Regulation”), enacted on 17 October 2005, are applicable without exception to all detainees. In particular, section III of the Regulation sets out the steps to be taken by the medical personnel of a detention facility upon the admission of a detainee. On arrival at a temporary detention facility, all detainees should be subjected to a preliminary medical examination before they are placed in a cell shared with other inmates. The aim of the examination is to identify individuals suffering from contagious diseases and those in need of urgent medical assistance. Particular attention should be paid to individuals suffering from contagious conditions. No later than three days after the detainee’s arrival at the detention facility he or she should be given an in-depth medical examination, including an X-ray. During the in-depth examination a prison doctor should register the detainee’s complaints, study his medical and personal history, record any injuries and recent tattoos, and schedule additional medical procedures, if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses.
32. Subsequent medical examinations of detainees are performed at least twice a year or following complaints from a detainee. If a detainee’s state of health has deteriorated, medical examinations and assistance should be provided by the detention facility medical staff. In such cases the medical examination should include a general check-up and additional tests, if necessary, with the participation of the relevant specialists. The results of the examinations should be recorded in the detainee’s medical file. The detainee should be comprehensively informed about the results of the medical examinations.
33. Section III of the Regulation also sets out the procedure to be followed in the event that the detainee refuses to undergo a medical examination or treatment. For each refusal, an entry should be made in the detainee’s medical record. A prison doctor should comprehensively explain to the detainee the consequences of his refusal to undergo the medical procedure.
34. Any medicines prescribed to the detainee must be taken in the presence of a doctor. In certain exceptional circumstances, the head of the detention facility medical department may authorise his medical personnel to hand over a daily dose of medicines to the detainee to be taken unsupervised.
35. The Internal Regulations of Correctional Institutions, in force since 3 November 2005, deal with every aspect of inmates’ lives in correctional institutions. In particular, paragraph 125 of the Regulations provides that inmates who are willing and able to pay for it may receive additional medical assistance. In such a situation, medical specialists from a State or municipal civilian hospital are to be called to the medical unit of the correctional institution where the inmate is being detained.
36. Governmental Decree no. 3 of 14 January 2011 concerning the medical examination of individuals suspected or accused of criminal offences regulates the procedure for authorising and performing the medical examination of a detainee to determine whether he or she is suffering from a serious illness precluding his or her detention. It also contains a list of such serious illnesses. A decision ordering the medical examination of a detainee is taken by the director of the detention facility following a written request from the detainee or his or her legal representative or a request by the head of the medical unit of that detention facility. The examination is performed by the medical commission of the facility appointed by the executive body of the health service of the respective region of the Russian Federation. The activities of the medical commission are determined by the Ministry of Health and Social Development of the Russian Federation.
37. The examination must be performed within five days of the medical facility’s receiving the relevant order. Following the examination, the medical commission issues a report stating whether the detainee is suffering from one of the serious illnesses listed in the Decree. If a detainee who was previously examined by the medical commission experiences deterioration in his or her health, a new medical examination can be authorised.
38. The list of serious illnesses precluding the detention of suspected or accused persons includes stage 4C or 5 HIV infection accompanied by stable health impairment leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.
B. Provisions establishing legal avenues for complaints about the quality of medical assistance
39. The provisions of domestic law establishing the legal avenues for complaints about the quality of medical services are cited in the following judgments: Koryak v. Russia, no. 24677/10, §§ 46-57, 13 November 2012; Dirdizov v. Russia, no. 41461/10, §§ 47-61, 27 November 2012; and Reshetnyak v. Russia, no. 56027/10, §§ 35-46, 8 January 2013.
C. Provisions governing detention
40. The relevant provisions governing detention are described in the judgment of Pyatkov v. Russia (no. 61767/08, §§ 48-66, 13 November 2012).
D. Provisions governing alternative to detention measures of restraint.
41. The Russian Code of Criminal Procedure, in force since 1 July 2002 (CCrP) provides, in addition to detention, the following measures of restraint or preventive measures: an undertaking not to leave a town or region, personal surety, bail , house arrest and supervision of a minor or of the military command (Article 98).
42. Article 102 of the CCrP indicates that a suspect or an accused may be released against a written undertaking not to leave a certain area (the place of permanent or temporary residence) without a permission from the investigating authorities or a court, as well as against an undertaking to respond to summons from the investigation and the court and not to interfere with the proceedings in the criminal case.
43. Article 107 § 1 of the CCrP provides that house arrest consisted of restricting a suspect’s or an accused’s freedom of movement, as well as forbidding him or her to (1) communicate with certain persons, (2) receive and send correspondence, and (3) conduct conversations using any means of communication. A suspect or an accused could be put under house arrest on the grounds and in accordance with the procedure set out in in the CCrP for placement in custody, with due regard for the person’s age, health, family status and other circumstances (Article 107 § 2). A decision to place a suspect or an accused under house arrest is to specify the restrictions imposed and designate a supervisory authority to ensure that the restrictions were observed (Article 107 § 3).
III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS
A. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)
44. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read:
39. Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.
41.4 Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:
b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;
43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.
Health care provision
46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison.
46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
B. 3rd General Report of the European Committee for the Prevention of Torture (“the CPT Report”)
45. The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The following are extracts from the Report:
“33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...
35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital ...
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). ...
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service. ...”
С. Guidelines issued by the World Health Organization
46. The Guidelines for Antiretroviral therapy for HIV infection in adults and adolescents issued by the World Health Organization (WHO) within the HIV/AIDS programme, following revision in 2010, recommended the commencement of antiretroviral treatment in all patients with HIV of WHO clinical stage 3 or 4, irrespective of the CD4 count. This recommendation remained unchanged following the revision of the Guidelines in June 2013.
47. The Guidelines revised in 2010 also contained a note on coinfection with HIV and hepatitis C, which read:
“Hepatitis C (HCV) coinfection is significantly associated with increased risk of death and advanced liver disease in HIV-positive individuals. HIV infection accelerates HCV-related disease progression and mortality but the reciprocal effect of HCV on the rate of HIV disease progression remains difficult to quantify because of the heterogeneity of study results. A recent meta-analysis showed an increase in the overall risk of mortality but did not demonstrate an increased risk of AIDS-defining events among coinfected patients.
A major observational cohort study on the level of toxicities of specific ART regimens used for HIV/HCV coinfection did not find significant differences. However, the systematic review on drug-drug interactions prepared for these guidelines found important pharmacological interactions between ribavirin and ABC, ATV, AZT, d4T and ddI that can increase the toxicity risk if these drugs are used concomitantly.
Many studies also suggest that the sustained viral response rates of HCV therapy in HIV coinfected individuals are significantly lower than in HCV-monoinfected patient but others have achieved higher rates in this population.
Considering the significant level of uncertainty on these topics and the importance of hepatitis C management in the context of HIV coinfection (an important gap highlighted by the guidelines panel group, particularly the representatives from the people living with HIV community), WHO is planning to revise the recommendations for the prevention and treatment of major HIV-related opportunistic infections and comorbidities, including hepatitis C. Furthermore, it is expected that the 2010 World Health Assembly will establish global policy recommendations for the management of viral hepatitis, which will increase support for an integrated approach to the prevention, treatment and care of HIV/HCV coinfection.
Meanwhile, the initiation of ART in HIV/HCV coinfected people should follow the same principles and recommendations as for its initiation in HIV-monoinfected individuals. However, patients should be closely monitored because of the increased risk of drug toxicities and drug interactions between some ARVs and anti-HCV drugs.”
D. Guidelines on Penile Cancer issued by the European Association of Urology
48. The Guidelines on Penile Cancer issued by the European Association of Urology, the leading authority within Europe on urological practice, research and education, read, insofar as relevant:
“6.2.1 Penile biopsy
There is no need for biopsy if:
• there is no doubt about the diagnosis and/or
• treatment of the lymph nodes is postponed after treatment of the primary tumour and/or after histological examination of the sentinel node(s).
There is a need for histological confirmation if:
• there is doubt about the exact nature of the lesion (e.g. metastasis or melanoma) and/or
• treatment of the lymph nodes is based on preoperative histological information (risk-adapted strategy).
In these cases an adequate biopsy is advised.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
49. 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.”
A. Submissions by the parties
50. The Government argued that the treatment provided to the applicant in detention facility no. IZ-24/1 had been in accordance with the applicable domestic legal norms and Article 3 of the Convention. They further pointed out that the applicant had undergone a number of medical examinations, tests and procedures. He had regularly received prescribed medication and followed a special dietary regimen. They also stressed that test results had revealed no pathology, and that the CD4 cell count tests had shown “positive dynamics”. The Government concluded by noting that the applicant had been provided with adequate care during the entire period of his detention.
51. The applicant maintained his claims. He argued that his HIV treatment had been interrupted following his arrest, that he had not been provided with the necessary medical assistance, and that his suffering from cancer and HIV infection had warranted his release.
B. The Court’s assessment
52. 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.
(a) General principles
53. 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, Verbinţ v. Romania, no. 7842/04, § 63, 3 April 2012, with further references).
54. 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).
55. 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 Popov v. Russia, no. 26853/04, § 208, 13 July 2006; and Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance 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 secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts); Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Kudła, cited above, § 94).
56. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006) and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109, 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211).
57. On the whole, the Court reserves sufficient 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).
(b) Application of the above principles to the present case
58. Turning to the facts of the present case, the Court observes that the applicant complained of inadequate medical assistance in relation to his three diseases: HIV infection, hepatitis C, and penile cancer. Having assessed the evidence, the Court is not convinced that the quality of the medical care provided to the applicant was inadequate.
59. Firstly, regarding the quality of the medical care dispensed in relation to the HIV infection, the Court observes that the authorities became aware that the applicant was suffering from stage 4A HIV on 16 August 2012, when he was examined by a medical panel upon admission to detention facility no. IZ-24/1. On the following day the applicant was prescribed a combination of highly active antiretroviral drugs (ARVs), which he regularly received during the entire period of his detention. The Court stresses that the Russian authorities formulated and commenced the antiretroviral therapy in compliance with the guidelines of the World Health Organization in force at the relevant time and the domestic legal requirements.
60. Both handwritten and typed medical records show that the applicant was regularly monitored in relation to his HIV infection. It appears that his treatment was successful, as tests carried out on a regular basis revealed a slight, but steady increase in numbers of CD4 cells.
61. The applicant pointed out one specific omission in relation to his HIV treatment, namely that upon his arrest on 13 August 2012 drugs for the treatment of his HIV infection had been taken from him. The Government disputed that allegation. The Court notes that the case file contains no evidence to show that the police had indeed seized drugs belonging to the applicant at the moment of his arrest. However, even assuming that there had in fact been a three-day long interruption of the antiretroviral therapy, between 13 August 2012, the day of the applicant’s arrest, and 16 August 2012, when the prison doctors prescribed the new drug therapy regimen for him, there is no evidence that it adversely affected the applicant’s condition and rendered the overall care received in detention ineffective. The Court notes that the medical records demonstrate convincingly that the applicant’s condition did not deteriorate in detention and that his HIV infection was not progressing (see paragraph 22 above). The Court is therefore unable to conclude that the treatment received in respect of his HIV infection was inadequate.
62. Turning to the applicant’s complaints pertaining to his suffering from hepatitis C (HCV), neither the applicant nor the Government provided any details in relation to that complaint. The copies of the medical file submitted by the Government do not contain any information in that respect. It therefore appears that the applicant did not receive any treatment in relation to hepatitis C. However, given the aggressive nature of the antiretroviral therapy and the increased risk of drug toxicities and drug interactions between some ARVs and anti-HCV drugs, as pointed out in the guidelines of the World Health Organization in force at the relevant time (see paragraph 43 above), the Court considers that the Russian authorities’ decision not to prescribe any treatment for hepatitis C does not appear unreasonable. The Court is also mindful of the fact that the applicant had merely listed hepatitis C as one of the illnesses from which he was suffering and did not make any further submission which could have indicated that the Russian authorities disregarded that diagnosis or refused to address his complaints in this respect.
63. With regard to the applicant’s penile cancer, the Court observes that after the applicant’s physical examination proved to be insufficient for the purpose of correct diagnosis and the applicant was offered a biopsy, which is a specific and tailored medical diagnostic procedure, he refused to undergo it, without specifying any reasons (see paragraph 24 above). The Court notes that the European Association of Urology considers biopsy to be a key procedure for diagnosing penile cancer. Hence, the applicant’s refusal to undergo that procedure deprived the Russian authorities of any opportunity to duly diagnose and treat his cancer.
64. The Court now turns to the applicant’s final argument, namely that his suffering from cancer and HIV infection had warranted his release. It reiterates its well-established approach that Article 3 does not entitle a detainee to be released “on compassionate grounds”, particularly so when the authorities have taken adequate measures to secure his health and well-being, not least through the provision of the requisite medical care, (see Aleksanyan v. Russia, cited above, § 138, with further references). Taking into account its findings pertaining to the quality of the medical assistance afforded to the applicant in detention and bearing in mind that the applicant’s condition was considered stable, with the Russian authorities having effectively addressed his complaints, the Court does not see any reasons to depart from that principle.
65. The Court accepts that the applicant’s medical condition could have made him more vulnerable than the average detainee and that his detention may, to a certain extent, have exacerbated his feelings of distress and helplessness. However, on the basis of the evidence before it and assessing the relevant facts as a whole, the Court does not find it established that the applicant was subjected to ill-treatment that attained a sufficient level of severity to bring it within the scope of Article 3 of the Convention (see, for similar reasoning, Stoyan Mitev v. Bulgaria, no. 60922/00, § 73, 7 January 2010).
66. To sum up, the Court considers that the domestic authorities afforded the applicant comprehensive, effective and transparent medical assistance throughout the period of his detention. There has accordingly been no violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
67. The applicant complained of a violation of his right to trial within a reasonable time and alleged that the orders for his detention had not been based on sufficient reasons. He relied on Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. Submissions by the parties
68. The Government opened their line of argument with the submission that the Russian courts had authorised the applicant’s arrest because they had sufficient reason to believe that he had committed “especially serious” offences, representing a danger to society and punishable by up to ten years’ imprisonment. The fact that the applicant had committed the crimes shortly after his release from prison had served as an additional reason for concluding that he was liable to re-offend. The Government further submitted that no documents had been produced before the courts attesting that the detention had been incompatible with the applicant’s state of health. They stressed that the length of the pre-trial investigation had been due to the fact that his criminal case had been linked to three other cases. They also pointed out that during the hearing of 5 February 2013 neither the applicant nor his lawyer had objected to the extension of the applicant’s detention. The applicant’s detention had been based on relevant and sufficient grounds and was compatible with the requirement of “reasonable time” provided in Article 5 § 3.
69. The applicant maintained his claims.
B. The Court’s assessment
70. The Court notes that this 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.
(a) General principles
71. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of his or her continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV).
72. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his or her continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I).
73. It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152).
(b) Application to the present case
74. The Court observes that the applicant’s pre-trial detention commenced when he was arrested on 13 August 2012 and ended on 7 August 2013 when he was released against an undertaking not to leave his place of residence (see paragraphs 6 and 18 above). The period to be taken into consideration therefore lasted for slightly less than twelve months.
75. It is not disputed by the parties that the applicant’s detention was initially warranted by a reasonable suspicion that he had attempted to sell a large quantity of drugs. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings.
76. The gravity of the charges was one of the factors for the assessment of the applicant’s potential to abscond, reoffend or obstruct the course of justice. However, the Court has repeatedly held that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; Ilijkov, cited above, § 81; and Letellier v. France, 26 June 1991, § 51, Series A no. 207). The Court will therefore examine whether the other grounds referred to by the domestic courts were sufficient to justify the applicant’s detention.
77. In addition to the gravity of the charges against the applicant, the judicial authorities relied on information relating to his behaviour. In particular, they found that his criminal record made him particularly prone to reoffend, abscond or tamper with witnesses.
78. As regards the danger of the applicant’s reoffending, the Court observes that he was arrested shortly after his release, having served a sentence for a similar offence of drug trafficking. The Court reiterates that previous convictions could give a ground for a reasonable fear that the accused might commit a new offence. A judge may take into account the seriousness of the consequences of criminal offences when there is a question of taking into account the danger of seeing such offences being repeated, in order to decide if the person concerned can be released (see Matznetter v. Austria, 10 November 1969, § 9, Series A no. 10). In the present case the Russian courts took care to point in their decisions to the seriousness and repeated nature of the criminal offences in question, and the Court agrees with their decision to attach particular importance thereto given extreme difficulties experienced by the national authorities in Europe, while targeting, tracking, arresting and bringing drugs criminals to court (see, mutatis mutandis, Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 49 and 53, ECHR 2008 and Jalloh v. Germany [GC], no. 54810/00, § 77, ECHR 2006-IX). The Court is therefore prepared to accept that the Russian courts thoroughly evaluated the risk of the applicant reoffending. That fact created a strong presumption against the application of alternative measures of restraint in his case.
79. The Court further reiterates that the Russian courts cited the applicant’s liability to abscond and tamper with witnesses as additional grounds warranting his detention. The Court does not lose sight that arguments for and against release must not be general and abstract (see Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225). It reiterates that the Russian courts did not cite any particular instance when the applicant had tried to contact, outside the established legal venues, a witness in the course of the criminal proceedings. There was also no evidence that he had ever made an attempt to flee justice. At the same time, the Court does not lose sight of the fact that the applicant had the criminal history of being involved in drug trafficking and was again charged with another count of that offence. The Court notes the domestic courts’ emphasis on the short period which had passed between the previous conviction of the applicant for the drug trafficking and his new arrest. It also does not lose sight of the fact that the applicant’s charges were later amended to include several counts of drug sale committed within an organised group (see paragraph 13 above). In these circumstances the Court is prepared to accept that the Russian courts could have validly presumed that a risk existed that, if released, the applicant might abscond or interfere with the proceedings, given the nature of his alleged criminal activities (see, for similar reasoning, Bąk v. Poland, no. 7870/04, § 62, 16 January 2007).
80. The Court therefore concludes that there were relevant and sufficient grounds for the applicant’s continued detention. The assessment of the “relevant and sufficient” reasons, however, cannot be detached from the actual length of detention on remand. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings.
81. In the present case, the applicant was held in detention on remand for twelve months. There is nothing in the materials submitted to the Court to show any significant period of inactivity on the part of the prosecution or the court (see, for similar reasoning, Amirov v. Russia, no. 51857/13, 27 November 2014; Mkhitaryan v. Russia, no. 46108/11, 5 February 2013; Sopin v. Russia, no. 57319/10, 18 December 2012; Arutyunyan v. Russia, no. 48977/09, 10 January 2012, and Buldashev v. Russia, no. 46793/06, 18 October 2011). In this regard, the Court observes that the investigation was of certain complexity, regard being had in particular to the general difficulty of collecting evidence in drug-related offence (see Ramanauskas, cited above, § 49). An important element in the Court’s assessment of the case is also the fact that after nearly twelve months of applying detention on remand the domestic courts held that the measure was no longer necessary, given the stage that the criminal proceedings had reached and the fact that the risks initially taken into account by the domestic courts were no longer relevant to authorise further detention. The Court notes that the applicant was released from detention on an alternative preventive measure, an undertaking not to leave his town, as soon as the investigation was completed, the case was remitted for trial and the risk of the applicant interfering with the proceedings in his case was brought to a minimum (see Vladimir Solovyev v. Russia, no. 2708/02, § 115, 24 May 2007, and Mamedova v. Russia, no. 7064/05, § 79, 1 June 2006). In such circumstances, the competent domestic authorities cannot be said to have displayed a lack of special diligence in handling the applicant’s case.
82. There has accordingly been no violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
83. The applicant lastly claimed that he had not had at his disposal an effective remedy for complaining about the lack of the adequate medical assistance, as required under Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”
A. Submissions by the parties
84. The Government argued that the applicant had had a right to complain of lack of medical care in detention, inter alia, to courts. The detention facility’s administration had not interfered with the applicant’s right to complain to the authorities. However, during the period of his detention the applicant had not raised the issue before the facility’s administration or before other authorities, including courts. Accordingly, the applicant’s allegation of a lack of effective avenues for complaining of inadequate medical care in detention was unsubstantiated.
85. The applicant maintained his claims.
B. The Court’s assessment
86. The Court notes that this 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.
87. The Court reiterates that Article 13 guarantees the availability at a national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of an “arguable” complaint under the Convention and to grant appropriate relief (see, as a classic reference, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131).
88. The Court reiterates in this connection that the existence of an actual breach of another provision is not a prerequisite for the application of Article 13 (see, for example, Camenzind v. Switzerland, 16 December 1997, § 53, Reports of Judgments and Decisions 1997-VIII; Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 130, 137 and 142, ECHR 2003-VIII; Nuri Kurt v. Turkey, no. 37038/97, § 117, 29 November 2005; and Ratushna v. Ukraine, no. 17318/06, § 85, 2 December 2010). In the present case, even though the Court was eventually persuaded that no violation of Article 3 of the Convention had been proved (see paragraph 66 above), it did not find the applicant’s complaint in that regard to be prima facie untenable (see paragraph 52 above) and reached the aforementioned conclusion only after the examination of its merits. The Court therefore considers that the applicant did raise an arguable claim for the purposes of Article 13 of the Convention.
89. 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 either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła, cited above, §§ 157-158, and Wasserman v. Russia (no. 2), no. 21071/05, § 45, 10 April 2008).
90. 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 for putting a rapid end to any such treatment. Had it been otherwise, the prospect of future compensation would have legitimised particularly severe suffering in breach of this core provision of the Convention (see Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008).
91. Turning to the facts of the present case, the Court notes the Government’s argument that the applicant did not attempt to pursue any avenues for exhausting remedies. However, it is not convinced by these submissions. In particular, some of the documents produced by the applicant, such as copies of the letters of 6 and 28 December 2012 from a deputy prosecutor of the Sverdlovsk District prosecutor’s office, show that he had complained to prosecutors in an attempt to draw the authorities’ attention to his state of health (see paragraphs 28 and 29 above).
92. However, the Court’s task in the present case is to examine the effectiveness of the various domestic remedies suggested by the Russian Government and not merely to determine whether the applicant had made his grievances sufficiently known to the Russian authorities. The Court has on many occasions examined the effectiveness of the domestic remedies suggested by the Government in cases of applicants complaining of ongoing inadequate medical treatment, such as in the present case. It found, in particular, that in deciding on a complaint concerning breaches of domestic regulations governing the provision of medical care to detainees, the prison authorities would not have a sufficiently independent standpoint to satisfy the requirements of Article 35 of the Convention (see Koryak, cited above, § 79, and Dirdizov, cited above, § 75). The Court also stressed that even though review by a supervising prosecutor plays an important part in securing appropriate medical care in detention, a complaint to the supervising prosecutor falls short of the requirements of an effective remedy because of procedural shortcomings that have been previously identified in the Court’s case-law (see Koryak, §§ 80-81, cited above). Having assessed a civil claim for compensation under the tort provisions of the Civil Code, the Court considered that such a claim could not offer an applicant any redress other than a purely compensatory award and could not put an end to a situation where there is an ongoing violation, such as inadequate medical care (see Reshetnyak v. Russia, no. 56027/10, §§ 65-73, 8 January 2013). Moreover, the Court found that such a remedy did not offer reasonable prospects of success, in particular because the award was conditional on the establishment of fault on the part of the authorities, which was extremely improbable in a situation where domestic legal norms prescribed the application of a certain measure, for instance, certain conditions of detention or the level of medical treatment (see A.B. v. Russia, no. 1439/06, § 96, 14 October 2010).
93. The Court notes that the domestic courts examined the applicant’s health condition when extending his detention (see paragraph 12 above). However, the only issue addressed by the courts was whether the applicant’s state of health allowed his continued detention. The courts did not assess the effectiveness of the medical care afforded to him in detention. The Government also did not argue that the courts in the detention proceedings could have provided the applicant with compensatory or, what is more important, preventive redress, such as correction of his therapy, prescription of additional medical procedures, and so on. The scope of the detention proceedings was purely limited to the examination of the grounds for the applicant’s detention or release.
94. In the light of the above considerations, the Court sees no reason to depart from its previous findings and 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.
95. To sum up, the Court finds that the applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
96. 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.”
97. The applicant asked the Court to award an unspecified amount in compensation for non-pecuniary damage.
98. The Government did not comment on the applicant’s claim.
99. The Court, making its assessment on an equitable basis, considers it reasonable to award the applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
100. The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on this account.
C. Default interest
101. 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
1. Declares, unanimously, the application admissible;
2. Holds, unanimously, that there has been no violation of Article 3 of the Convention;
3. Holds, unanimously, that there has been no violation of Article 5 § 3 of the Convention;
4. Holds, unanimously, that there has been a violation of Article 13 of the Convention;
5. Holds, by six votes to one
(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 Russian roubles at the rate applicable at the date of settlement:
(i) EUR 2,500 (two thousand and five hundred euros) in respect of non-pecuniary damage;
(ii) any tax that may be chargeable to the applicant on the above amount;
(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 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach András
Deputy Registrar President
 The Russian classification of the HIV-related disease is different from that employed by the World Health Organization. Stages 4 and 5 in the Russian classification correspond to stages 3 and 4 in the WHO classification, respectively.