CASE OF TSELOVALNIK v. RUSSIA
(Application no. 28333/13)
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 Tselovalnik 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. 28333/13) 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 Vitalyevich Tselovalnik (“the applicant”), on 25 April 2013.
2. The applicant, who had been granted legal aid, was represented by Ms N. Radnayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that he had not benefited from adequate medical care in detention and had not had an effective remedy for his complaint about the poor medical services.
4. On 1 October 2013 the complaints of ineffective medical assistance and the lack of an effective remedy 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 1977 and is currently serving his prison sentence in Kemerovo.
6. On 19 November 2008 the applicant was convicted of several counts of attempted drug trafficking. He was sentenced to ten years and six months’ imprisonment and sent to correctional colony no. 43 in Kemerovo.
7. Prior to his arrest the applicant was diagnosed with hepatitis C.
8. Following his arrival at the correctional colony, the applicant underwent a medical check-up, which did not reveal any diseases.
9. Sometime later the colony administration received a certificate from a civil hospital attesting that the applicant was suffering from hepatitis C. On the following day he was prescribed hepatoprotectors.
10. In December 2009 the applicant started experiencing severe pain in the knees. Following a large number of complaints, he was examined on 29 June 2010 by a colony doctor. The doctor suspected that he might have rheumatoid polyarthritis and deforming osteochondrosis of the knee joints and recommended an X-ray examination.
11. In August 2010 the applicant was transferred to a prison hospital in correctional colony no. 5. Following medical examinations by a physician, a neurologist and an ophthalmologist, and an X-ray, he was diagnosed with an articular syndrome which the doctors concluded was linked to his hepatitis C. No serious pathology was detected. The applicant was prescribed treatment with hepatoprotectors. His complaints of severe pain in the joints were not addressed.
12. The applicant and his relatives complained to various prison authorities of the lack of proper medical assistance. The replies received by the applicant were almost identical in wording: the officials stated that the medical examinations of the applicant, including an X-ray examination, and his consultations in the prison hospital, had not revealed any articular pathology. They stressed that the prison medical personnel were trained and equipped to address the applicant’s health problems. They also said that an in-patient check-up in the prison hospital of colony no. 5 had been scheduled for the applicant in December 2010 or early 2011.
13. The applicant asked the administration of his colony to authorise a forensic medical examination or to admit him to a prison hospital for an in-depth examination and treatment. He also complained that the medical unit of the correctional colony was not equipped to address his health problems. The applicant’s relatives supported his request, having also asked that he be held in the colony in Rostov, close to his home. They argued that they had been unable to travel across the country to see him and could not provide him with assistance or medicines as the colony in which he was detained was too far away. They requested the applicant’s transfer to a hospital in view of his poor state of health.
14. On 9 April 2012 the applicant was taken from the correctional colony in Kemerovo to a temporary detention facility in Rostov-on-Don to take part in court hearings related to a supervisory review of his conviction. His transfer from Kemerovo to Rostov lasted two months and included several transit destinations: the towns of Mariinsk, Chelyabinsk, Samara, Saratov and Voronezh. On arrival at each of those towns the applicant was taken from the train to a temporary detention facility. According to the applicant, he spent hours on the road carrying a heavy bag with his belongings. He also had to wait for hours for admission to each facility, in great pain but without any opportunity to rest, sit or lie down. His condition started to deteriorate following the transfer. According to the Government, the distance that the applicant had to walk carrying his bag never exceeded 15 metres. During the transfer the applicant was always provided with a sleeping place and never asked for medical assistance.
15. In response to complaints from the applicant’s relatives, on 1 August 2012 the head of detention facility no. 1 in Rostov sent a letter to the applicant’s mother informing her that a request for admission to tuberculosis hospital no. 1 had been sent by the medical unit of the detention facility. However, three days later the applicant was transported back to correctional colony no. 43 in Kemerovo. The long transit once again led to the deterioration of the applicant’s condition. On arrival at the colony the applicant complained of severe pain, but his complaints were to no avail.
16. On 4 October 2012 the applicant was seen by a prison doctor. On the same day, he was placed in a punishment cell because a mobile phone had allegedly been found in his cell and he had been declared “a persistent offender of the internal order”. The applicant submitted that it had been extremely cold in the punishment wing and that he had not been given any warm clothes. He stressed that that situation had led to a further deterioration in his health, with the pain in his joints becoming unbearable. His requests for medical assistance were ignored.
17. The applicant and his relatives complained to a large number of authorities that the applicant was not being provided with any medical attention. One of those complaints brought a response from the Kemerovo regional prosecutor’s office. In a letter of 12 November 2012 a senior prosecutor from the office informed the applicant’s mother that an examination in the prison hospital of correctional colony no. 5 had been scheduled for the applicant at the end of 2012 to determine whether he was suffering from an illness affecting the joints. The Kemerovo Regional Ombudsman sent a similar response.
18. At the end of October 2012, in response to the applicant’s continuous complaints of pain in the joints, his admission to the colony medical unit was authorised. He started receiving an anti-inflammatory drug to relieve the pain in his joints and to ameliorate his condition. The applicant submitted that the drug had had no effect.
19. On 6 December 2012 the applicant was transferred to the therapy ward of the regional prison hospital. He was seen by a surgeon, an ophthalmologist, a cardiologist and a neurologist. The Government insisted that specialists from the regional ophthalmological hospital and the regional cardiology clinic, as well as from the Regional Centre for Protection from AIDS “were involved in the consultations”. A complex examination including an ultrasound scan revealed that he was suffering from multi-level osteochondrosis, which was chronic and recurrent and at a moderately acute stage. He was also diagnosed with osteoarthrosis of the knee joints, a soft tissue disorder of the shoulder, and lumbodynia (pain in the lumbar area). It was recommended that he receive active supervision in the detention facility and treatment, twice a year, with vitamins, metabolites, anti-inflammatory drugs and chondroprotectors. He was also prescribed exercise therapy and self-massage with various ointments. The doctors recommended that the applicant should avoid lifting heavy objects and should not be subjected to the cold. In addition, they compiled a complex chemotherapy regimen in the event that his illness reached an acute stage.
20. The applicant submitted that while at the hospital he had also complained of pain in his pelvis, elbows and ankles. However, no examination of those areas was conducted.
21. Having undergone treatment in the hospital, on 21 December 2012 the applicant was discharged in a satisfactory condition. Upon his arrival at colony no. 43 he was prescribed a chondroprotector, a hypotensive drug and vitamins.
22. Three weeks after his discharge from hospital the applicant was sent back to Rostov. He was forced to take the same route as in April-May 2012. The applicant stressed that he had been unable to follow any of the recommendations made by the doctors of the prison hospital. He had to carry a heavy bag with his personal belongings and had to stay for hours in cold premises or outside without any possibility of lying down or sitting, save for directly on the ground. According to the Government, the distance that the applicant had to walk carrying his bag never exceeded 15 metres. During the transfer the applicant was always provided with a sleeping place and never asked for medical assistance.
23. The applicant again started experiencing severe pain in the joints. He also had pain during urination. His requests for medical care were ignored by the doctors of temporary detention facility no. 61/1 of Rostov. Late on 20 February 2013 the applicant was taken to a prison hospital for an urgent consultation with an urologist. However, given the late hour he could only be seen by the on-duty doctor, who recorded his complaints, diagnosed acute prostatitis and recommended his examination by a specialist. The applicant was sent back to the detention facility.
24. Two days later the applicant was transported back to the correctional colony in Kemerovo, despite his mother’s requests to postpone the transfer on account of his poor state of health. Throughout the month-long trip from Rostov to Kemerovo the applicant persistently complained of the deterioration in his health and his inability to bear the pain caused by the cold and the requirement to carry a heavy load. No measures were taken.
25. On 27 March 2013, following the applicant’s arrival at correctional colony no. 43, he was prescribed a chondroprotector, a hepatoprotector, a hypotensive drug and vitamins. On 15 April anti-ulcer and anti-inflammatory drugs were added to his regimen.
26. Between 22 May and 13 June 2013 the applicant underwent inpatient treatment at the prison hospital of correctional colony no. 5. The doctors confirmed the earlier diagnosis and also found the applicant to be suffering from first-degree coxal osteoarthritis.
27. On 18 June 2013 following his return to the colony the applicant was prescribed vitamins, hypotensive drugs, a chondroprotector and a hepatoprotector.
28. On 4 December 2013 the applicant was examined by a medical panel, which found that his diseases posed no risk to his life.
29. On 23 December 2013 the doctors suspected that the applicant might have infiltrative tuberculosis in his left lung. Between 23 December 2013 and 5 February 2014 he was kept in a quarantine ward together with two other infected prisoners without receiving any treatment. He was then sent to prison hospital no. 16 in Kemerovo, where he has remained ever since. Referring to the hospital’s poor reputation as regards respect for prisoners’ rights, the applicant’s representative requested that the applicant be sent to another facility, but to no avail.
30. On 28 November 2013 the applicant complained to a court, under Chapter 25 of the Code of Civil Procedure, of the lack of medical care in correctional colony no. 43. He claimed that his health complaints had been systematically ignored, that his condition had deteriorated in detention and that he had not been receiving the treatment prescribed to him in December 2012. He also submitted that he had not been allowed to take the medication provided to him by his relatives.
31. On 22 January 2014 the claim was dismissed. Having cited in detail a copy of the applicant’s medical file provided by the administration of the colony, the court briefly concluded that the applicant’s claims were unsubstantiated. Relying on a statement by the colony’s representative, the court found that the applicant had never asked the administration to allow him to take drugs other than those he was provided with by the prison staff.
32. The applicant’s appeal against the decision of 22 January 2014 was rejected on 2 July 20014 by the Kemerovo Regional Court.
33. The applicant provided the following description of his current condition, corroborated by written statements from two of his fellow inmates. He stated that his illness was at an acute stage, and he was suffering from constant severe pain in the joints. He was rapidly losing weight: he weighed 58 kg while being 174 cm tall. The pain was affecting all of his joints, making movement almost impossible. He could not sleep or walk without painkillers. The only medicaments provided (an anti-inflammatory drug and a chondroprotector) were ineffective for the treatment of an illness such as his, especially given its advanced stage. His request for a copy of his medical record in order to consult an independent specialist had been refused by the administration of the correctional colony, who said that they had no means to pay for a copy of his record.
II. RELEVANT DOMESTIC LAW
A. Provisions governing the quality of medical care afforded to detainees
34. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, set out in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice on the Organisation of Medical Assistance to Individuals Serving Sentences or Remanded in Custody (“the Regulation”), adopted on 17 October 2005, are applicable without exception to all detainees. In particular, section III of the Regulation sets out the initial steps to be taken by medical personnel of a detention facility on 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 by 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 receive 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.
35. Subsequent medical examinations of detainees should be performed at least twice a year or following a detainee’s complaints. 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 a 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.
36. Section III of the Regulation also sets out the procedure to follow 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.
37. Any medicines prescribed to the detainee must be taken in the presence of a doctor. In a limited number of 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 unobserved.
38. 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 may be called to the medical unit of the correctional institution where the inmate is being detained.
B. Provisions governing the quality of medical care afforded to patients suffering from rheumatoid arthritis
39. Decree no. 587 of the Ministry of Health and Social Development of 20 September 2005 sets out the guidelines for medical care in cases of rheumatoid arthritis. The section devoted to diagnosis of the illness contains a long list of tests to be carried out. In particular, all patients are to be subjected to a large number of blood tests, including the “rheumatoid factor” blood test, and to an ultrasound scan. In certain instances, doctors may also proceed to MRI and X-ray examinations, computer tomography and immunological testing.
C. Provisions establishing legal avenues for complaints about the quality of medical assistance
40. The provisions of domestic law establishing 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).
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”)
41. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:
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”)
42. 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. ...”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
43. 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
44. The Government contested the applicant’s allegation. They submitted that since 2010 he had been subjected to paraclinical tests, including X-ray examinations of his knees. He had always been provided with effective in-patient and out-patient medical care. They insisted that the first-stage osteoarthrosis of the knee and hip joints with which the applicant had been diagnosed could not cause unbearable pain. The pain was apparently due to the applicant’s hepatitis C and prior drug addiction. His condition did not require placement in a specialised medical institution. All of the penal institutions in which the applicant had been detained had had the appropriate equipment and staff for the treatment of his diseases. During his detention, specialists from civil hospitals in the sphere of ophthalmology, cardiology and infectious diseases had been consulted on a number of occasions. At no point had the doctors detected any significant changes in his osteoarticular system inherent to polyarticular rheumatoid arthritis. The applicant’s condition was currently satisfactory, and he was receiving the treatment prescribed to him in full. The Government concluded by stressing that the applicant had been provided with comprehensive medical care throughout his detention, in compliance with Article 3 of the Convention.
45. The applicant maintained his claims. He pointed out that on his arrival at correctional colony no. 43 he had only been suffering from hepatitis C, whereas he had now been diagnosed with nine other illnesses. He submitted that his complaints of severe pain in the joints had been ignored in June 2010. With regard to his medical examination in 2010, he pointed out that the X-ray examination had not been followed up by other relevant tests, such as a rheumatoid-factor blood count, immunological examination and HLA blood test, susceptible to confirm or rule out Bechterew’s disease. The applicant further claimed that he had not been seen by an orthopaedist or rheumatologist. Furthermore, when he had been diagnosed with diseases of the joints in December 2012, the doctors had failed to carry out X-ray examinations of his hips, ankles and elbows, despite his complaints of severe pain in those areas. In his opinion, the authorities had failed to take the necessary measures to ensure an accurate diagnosis at an early stage of the disease.
B. The Court’s assessment
46. 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
47. 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).
48. 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).
49. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). 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 Kudła, cited above, § 94; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)).
50. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists, in particular, that authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211).
51. 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
52. Turning to the circumstances of the present case, the Court observes that in June 2010, following the applicant’s complaints of knee pain, a doctor suspected that he might be suffering from rheumatoid polyarthritis and deforming osteochondrosis, and recommended an X-ray examination (see paragraph 10 above). The X-ray performed in August 2010 revealed no serious pathology. The doctors then concluded that the applicant’s pain syndrome was linked to his hepatitis C, and prescribed him treatment with hepatoprotectors (see paragraph 11 above).
53. The Court notes that Decree no. 587 of the Ministry of Healthcare and Social Development of 20 September 2005 contains a long list of diagnostic procedures to be carried out in the event that rheumatoid polyarthritis is suspected. Those procedures include a “rheumatoid factor” blood test, an MRI scan, an X-ray examination, a computer tomography, and immunological and ultrasound testing (see paragraph 39 above). The Court is not competent to decide whether the choice of diagnostic procedures was reasonable. However, it is not prepared to disregard the fact that despite the applicant’s complaints of severe pain, the prison medical specialists limited themselves to carrying out a very basic and diagnostically limited radiology test, and did not deem it necessary to resort to other diagnostic procedures or to conduct a thorough evaluation. The Court particularly notes that by virtue of the Decree, all patients likely to be suffering from rheumatoid polyarthritis should be subjected to a “rheumatoid factor” blood (see paragraph 45 above). Hence, by failing to carry out that test, the authorities disregarded the domestic medical standards.
54. The Court further notes that in the course of the applicant’s medical examination in August 2010 he was not seen by a rheumatologist. He went without an examination by such a specialist even after December 2012, when he was diagnosed with several osteoarticular illnesses (see paragraph 19 above). The applicant’s medical record shows that he was examined by different specialists, such as a neurologist, a cardiologist and an ophthalmologist. However, the Court is not convinced that those specialists had the skills required to deal with the rheumatoid aspect of his condition. In the Court’s view, the authorities’ failure to ensure that the applicant was examined by a specialist with an appropriate profile undermined the accuracy of the diagnosis and the effectiveness of the treatment. The Court finds it disturbing that despite the applicant’s continued and persistent complaints of severe pain, he went undiagnosed for almost three years, between December 2009 when he raised the complaints for the first time (see paragraph 10 above), and October 2012 when he started receiving at least some treatment for his rheumatological problems (see paragraph 18 above).
55. The Court further notes that following the applicant’s examination in December 2012 he was prescribed vitamins, metabolites, anti-inflammatory drugs and chondroprotectors, as well as exercise therapy and self-massage with various ointments. The doctors recommended that he avoid lifting heavy objects and should not be subjected to the cold. The applicant’s medical file shows that he was first given anti-inflammatory drugs on 15 April 2013, that is, four months after they were prescribed (see paragraph 25). Moreover, during his transfer from Rostov to Kemerovo in February 2013 (see paragraph 22 above) he was regularly subjected to the cold which could cause a further deterioration in his condition. The Government did not dispute the applicant’s submission that before being admitted to each sleeping facility on his transfer route the applicant was kept for hours in cold premises or outside without any possibility to lie down or sit, save for directly on the ground (see paragraphs 14-15, 22 and 24 above).
56. Lastly, the Court notes that despite the applicant’s having been diagnosed with acute prostatitis on 20 February 2013 and advised to see an urologist (see paragraph 23 above), the authorities failed to ensure his examination by such a specialist. Instead of being seen by an urologist, the applicant was found fit for transfer and was sent back to correctional colony no. 43. He was not examined by an urologist there either.
57. The Court thus finds that the applicant has not received comprehensive, effective and transparent medical treatment for his illness during his detention. It is also troubled by the current state of affairs, which are characterised by the continuous failure of the Russian authorities to address the applicant’s serious health complaints (see paragraph 33 above). In these circumstances the Court cannot but conclude that the authorities’ failure to provide the applicant with the medical care he has needed amounts to inhuman and degrading treatment within the meaning of Article 3 of the Convention.
58. Accordingly, there has been a violation of Article 3 of the Convention on that account.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
59. The applicant claimed that he had not had at his disposal an effective remedy for complaining about the lack of 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
60. The Government submitted that the applicant should have first raised his complaints before the competent domestic authorities, including the administration of the detention facility, the prosecutors and the relevant court. They argued that he had had a right to complain of lack of medical care in detention to various authorities, but no complaints from him had been recorded by, inter alia, the prosecutors’ offices. As regards the complaints introduced by his mother, they had been examined in accordance with the applicable domestic law. The Government stressed that prior to 4 December 2013 the applicant had not applied to the courts, either with a view to instituting criminal proceedings or to obtain compensation. The Government concluded that there had been no violation of the applicant’s right to an effective remedy.
61. The applicant maintained his claims. He stressed that the domestic law did not prohibit the lodging of complaints through representatives. As regards the remedies suggested by the Government, he pointed out that he could not have introduced a complaint under Article 125 of the Code of Criminal Procedure because his complaints were not related to any criminal proceedings. He further submitted that in order to claim damages under the domestic law it was first necessary to have an omission on the part of the authorities established. Hence, he first had to submit a complaint under Chapter 25 of the Code of Civil Procedure, which he had done. Lastly, the applicant noted that he and his mother had submitted over 200 complaints and petitions to the authorities with regard to the poor quality of the medical assistance he had received in detention.
B. The Court’s assessment
62. The Court considers that the Government’s objection as to exhaustion of domestic remedies is closely linked to the substance of the complaint under Article 13 of the Convention and should, therefore, be joined to the merits. The Court further 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.
63. The Court reiterates that Article 13 of the Convention guarantees the availability at 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).
64. 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, §§ 157-58, and Wasserman v. Russia (no. 2), no. 21071/05, § 45, 10 April 2008).
65. Where the fundamental right to protection against torture and inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to 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 an end to any such treatment rapidly. Otherwise, the prospect of 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).
66. 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 those submissions. It is undisputed that the applicant complained of the authorities’ failure to provide him with the requisite medical assistance under Chapter 25 of the Code of Civil Procedure. Moreover, the Court cannot overlook the applicant’s argument, which has not been disputed by the Government, that the Russian law permitted representatives to lodge complaints on inmates’ behalf, including complaints pertaining to conditions of detention and quality of medical care. That argument is also supported by the fact that the complaints lodged by the applicant’s representatives drew a response from the authorities to whom they were addressed (see paragraph 15 above).
67. The Court observes that its 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 made his grievances sufficiently known to the Russian authorities. In this connection, the Court recalls that it 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 the present case. It has 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 v. Russia, no. 24677/10, § 79, 13 November 2012, and Dirdizov v. Russia, no. 41461/10, § 75, 27 November 2012). The Court has also stressed that even though review by a supervising prosecutor played an important part in securing appropriate medical care in detention, a complaint to the supervising prosecutor fell short of the requirements of an effective remedy because of the procedural shortcomings that had 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 was 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).
68. 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.
69. Accordingly, the Court rejects the Government’s objection as to the exhaustion of domestic remedies and finds that the applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
70. 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.”
71. The applicant claimed 80,000 euros (EUR) in respect of non-pecuniary damage.
72. The Government argued that the claim was not reasonable. In particular, the applicant had not submitted any medical evidence proving the causal link between the deterioration of his health and the allegedly inadequate medical assistance in detention. They further stressed that the Court’s judgment would in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.
73. The Court, making its assessment on an equitable basis, awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
74. The applicant also claimed EUR 2,000 for the costs and expenses incurred before the Court.
75. The Government disagreed.
76. According to the Court’s case-law, an applicant is entitled to reimbursement of his 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. The Court notes that the applicant was granted legal aid for his representation before the Court. Accordingly, it considers that the sum afforded in legal aid is sufficient to cover the applicant’s expenses incurred before the Court.
C. Default interest
77. 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 to join to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it;
2. Declares the complaints concerning ineffective medical assistance in detention and lack of an effective remedy to complain about inadequate medical services admissible;
3. Holds that there has been a violation of Article 3 of the Convention;
4. Holds that there has been a violation of Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
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 Sajó
Deputy Registrar President