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MECHENKOV v. RUSSIA - 35421/05 [2008] ECHR 122 (7 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/122.html
Cite as:
[2008] ECHR 122
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FIRST
SECTION
CASE OF
MECHENKOV v. RUSSIA
(Application
no. 35421/05)
JUDGMENT
STRASBOURG
7 February
2008
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 Mechenkov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Loukis
Loucaides,
Nina
Vajić,
Anatoli
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 17 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35421/05) 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 Aleksandr Stepanovich
Mechenkov (“the applicant”), on 18 August 2005.
The Russian Government (“the Government”)
were initially represented by Mr P. Laptev, the former
Representative of the Russian Federation at the European Court of
Human Rights, and subsequently by their new Representative, Mrs V.
Milinchuk.
On
27 June 2006 the President of the Chamber decided to apply Rule 41
of the Rules of Court and to grant priority treatment to the
application.
On
1 September 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1957 and lives in
Novosibirsk. He is currently serving a sentence in
correctional facility IK-18 of the Novosibirsk Region.
A. The applicant's state of health and the medical treatment
available to him
1. Events before 28 October 2001
On
6 April 1993 the applicant was sentenced to nine years' imprisonment.
On 10 June 1996 the applicant swallowed a piece of
electrode and was admitted to the surgical unit of medical
penitentiary institution LIU-10, Novosibirsk («лечебно-исправительное
учреждение
№ 10», hereafter LIU-10). He had a chest X-ray and
was diagnosed with infiltrative tuberculosis of the upper lobes of
the lungs in the active phase. The applicant was treated with
ethambutol
and isoniazid.
On
28 May 1998 the applicant was discharged from LIU-10 to Prison
UF-91/21, Novosibirsk («УФ-91/21»,
hereafter UF-91/21) with a diagnosis of infiltrative tuberculosis
resulting in fibrosis and dense foci in the upper lobes of the lungs.
On 12 April 2000 the applicant was again placed in
LIU-10 on account of suspected relapse of tuberculosis. After a
medical examination he was diagnosed with infiltrative tuberculosis
of the upper lobes of the lungs with dense foci and prescribed with
streptomycin, isoniazid, rifampicin,
ethambutol, pyrazinamide, methionine, diasoline, vitamin B6 and
sodium thiosulfate. On 3 May 2000 the applicant stated in writing
that he refused to take the prescribed treatment. According to the
Government, the course of treatment continued.
Having
been granted amnesty, the applicant was released from LIU 10 on
16 August 2000.
According
to the Government, on his release from detention the applicant failed
to apply for registration to the centre for prevention of
tuberculosis (“the prophylactic centre”). The applicant
submitted that his attempt to register at the prophylactic centre had
been futile as he had had no valid permanent residence registration.
On
4 June 2001 the applicant was placed on the list of the prophylactic
centre of Krasnozersk Hospital and diagnosed with focal tuberculosis
of the upper lobes of the lungs in the resorption and induration
phase.
On
29 June 2001 the applicant presented himself at the prophylactic
centre. He underwent a medical examination and was issued with a
certificate confirming that he was fit to work as an operator of
agricultural machinery.
2. The applicant's detention after 28 October 2001
(a) Detention between 28 October 2001 and 26 April
2002
On
28 October 2001 the applicant was arrested on charges of infliction
of bodily injuries and incarcerated in the temporary detention
facility of the Krasnozerskiy District Department of the Interior of
the Novosibirsk Region. Upon the arrest he was not given blood tests
for hepatitis C.
On
29 October 2001 the applicant complained to his guards that he was
spitting blood. They escorted him to the prophylactic centre of
Krasnozersk Hospital. The applicant had a chest X-ray and was
diagnosed with clinical recovery from tuberculosis resulting in
infrequent calcifications. No medical evidence of haemoptysis
(coughing blood) was found.
On
14 November 2001 the applicant was transferred to remand centre SIZO
No. 2, Kuybyshev, the Novosibirsk Region, and underwent a medical
examination there.
On
26 February 2002 the Krasnozerskiy District Court of the Novosibirsk
Region convicted the applicant and sentenced him to eight years'
imprisonment.
On
8 April 2002 the Novosibirsk Regional Court amended the judgment on
appeal and reduced the sentence to seven years' imprisonment.
(b) Detention in prison UF-91/13
On
26 April 2002 the applicant was transferred to serve his sentence in
Prison UF-91/13, Novosibirsk (УФ-91/13,
hereafter UF-91/13).
On
31 July 2002 the applicant was placed in LIU-10 and diagnosed with
clinical recovery from pulmonary tuberculosis resulting in fibrosis
and dense foci, stenocardia and extra-systolic arrhythmia. On 8
August 2002 he was discharged from LIU-10 and transferred back to
UF 91/13.
On
30 September 2002 the applicant went on hunger strike, which led to a
deterioration in his state of health. On 7 October 2002 the applicant
declined the prison authorities' offer to place him in hospital. On 9
October 2002 the applicant was admitted to the prison infirmary of
UF-91/13 and ended his hunger strike. According to the Government,
while in the UF-91/13 infirmary, the applicant did not keep to the
prescribed diet and refused to undergo certain tests or take
treatment. On 23 October 2002 he was discharged from the
UF-91/13 infirmary for failure to comply with its rules.
On
13 January 2003 the applicant was transferred away from UF 91/13
to an unspecified penitentiary institution.
(c) Medical assistance available to the applicant
after 2 April 2003
Between
2 April 2003 and 20 August 2004 the applicant was kept in Prison
UF-91/15 (УФ-91/15,
hereafter UF-91/15).
On
5 November 2003 the applicant was placed in the inter-regional
tuberculosis hospital («межобластная
туберкулезная
больница»,
hereafter MSTB), a specialised facility within LIU-10, for clinical
confirmation of diagnoses of ischaemia and chronic hepatitis. On
18 December 2003 he was discharged from the MSTB to UF-91/15
with a diagnosis of compound gastritis, pyloric spasm and emotionally
unstable personality disorder.
On
an unspecified date in 2004 the applicant was transferred to
UF 91/21. On arrival he was listed in the prison medical
register. The Government submitted that on several occasions the
applicant had refused to take preventive anti-tuberculosis
medications. According to the applicant, shortly after the transfer
to UF 91/21 he was placed in its prison infirmary where he
received injections with non-disposable syringes.
On
25 October 2004 the applicant was placed in the MSTB on account of
suspected relapse of tuberculosis and underwent general and
biochemical blood tests, as well as a chest X-ray. He was diagnosed
with recurrence of infiltrative tuberculosis of the upper lobe of the
left lung.
According to the Government, on 29 November 2004 the
applicant's blood test revealed antibodies to viral hepatitis C.
Relying on the test results, the LIU-10 doctors diagnosed the
applicant with chronic hepatitis C and treated him with essenciale,
cerucal, riboksin and vitamins C, B1 and B6. The applicant submitted
that at some point Mr G., the deputy head of LIU-10, referring to
scarce budgetary financing, offered to purchase some costly
hepatoprotective medicines for him at his own expense.
On 16 December 2004 and 27 January 2005 the
applicant's blood tests revealed no acute hepatitis C. The applicant
was then prescribed ninety-three doses of anti-tuberculosis
medications, such as isoniazid, rifampicin, ethambutol, protionamid
and streptomycin. On 26 January 2005 the MSTB doctor filed with the
head of LIU 10 a report stating that the applicant had taken
none of the prescribed doses.
On
7 February 2005 the applicant was discharged from the MSTB and placed
in the LIU-10 infirmary. He was prescribed five anti-tuberculosis
medicines, vitamins and hepatoprotective treatment. According to the
Government, on several occasions, namely on 11 February, 2 and
30 March, 8 and 12 April, 20 June and 12 July 2005, as well as
on 2 February 2006, the applicant refused to take the prescribed
anti-tuberculosis treatment.
On
30 March 2005 the doctors of the LIU-10 infirmary prescribed the
applicant with a course of anti-tuberculosis medication comprising
sixty doses.
According
to the Government, the applicant's tuberculosis had been stabilised
by August 2005.
On 25 October 2005 the applicant took blood tests and
was diagnosed with infiltrative tuberculosis and hepatitis C in a
partial remission stage. No acute hepatitis C was revealed at that
time. According to the applicant, he received no antiviral or
hepatoprotective treatment.
On
9 December 2005 the LIU-10 infirmary doctor issued a certificate
confirming that the applicant had taken none of the sixty doses of
the prescribed anti-tuberculosis medication.
On
18 April 2006 the applicant was transferred to the MSTB for inpatient
treatment and allegedly placed in a cell with active tuberculosis
carriers. On 27 April 2006 the applicant was discharged from the MSTB
and transferred back to LIU-10.
On
an unspecified date in 2007 the applicant was transferred from LIU 10
to correctional facility IK-18 of the Novosibirsk Region.
B. Proceedings instituted by the applicant
1. Complaints at domestic level
On
unspecified dates in 2005 the applicant complained to the
prosecutor's office of the Novosibirsk Region (“the regional
prosecutor's office”) about his infection with hepatitis C and
lack of medical assistance in LIU-10. By letters of 11 and 13 April
2005 the regional prosecutor's office informed the applicant that his
complaints had been dismissed as unsubstantiated.
At
some point the applicant complained to the Main Department of the
Federal Service for the Execution of Sentences in the Novosibirsk
Region. On 4 July 2005 they replied that the applicant had been
refusing to comply with doctors' instructions and had taken only six
out of sixty prescribed doses of anti-tuberculosis treatment. They
commented that the applicant had been provided with appropriate and
comprehensive medical assistance.
The
applicant applied for conditional release on health grounds. On
15 April 2005 the Novosibirskiy District Court of the
Novosibirsk Region dismissed his request. Apparently the applicant
did not appeal against the decision.
The
applicant sued a regional branch of the Federal Penitentiary Service
claiming compensation for damage to health. On 28 February 2005 the
Dzerzhinsk District Court of Novosibirsk returned the statement of
claims to the applicant for elimination of discrepancies. It appears
that the applicant did not comply with the court's request. He lodged
another statement of claims, which was returned to him for a failure
to eliminate discrepancies by the Dzerzhinsk District Court of
Novosibirsk on 1 August 2005. Apparently the applicant did not appeal
against the decision.
The
applicant believed that his property rights had been infringed by a
private company and lodged against it two statements of claims, one
of which was returned to him for elimination of discrepancies on 8
November 2005. On 3 April 2006 the second action was disallowed for
failure to pay a court fee. The applicant did not appeal against the
rulings.
The
applicant complained to the regional prosecutor's office that Mr G.
had made death threats to him. He also complained about his infection
with hepatitis C and interference with his correspondence with
the Court.
By
letter of 27 March 2006 the regional prosecutor's office informed the
applicant that they had dismissed the entire set of his complaints as
unsubstantiated. They observed, in particular, the following:
“<...> [Medical] data obtained in the course
of the objective examination excludes viral hepatitis' activity and
the need to administer antiviral treatment.
The infection with hepatitis C could have occurred as a
result of repeated acts of self-mutilation [that damaged] the
epidermis and the mucous membrane of the stomach, committed in March
and May 1995 and June and September 1996. Since 2000 [medical]
facilities of the Novosibirsk Region penitentiaries have used only
disposable syringes and needles; thus the possibility of infection
with viral hepatitis C in these facilities is excluded.
<...> In 2005 [the applicant] sent no applications
to the European Court via the LIU 10 administration; however, he
received acknowledgment of receipt dated 16 January 2006 of his
application form dated 9 November 2005. In 2006 [the applicant] sent
two letters to the European Court, namely a sealed letter of
14 February 2006 and [the applicant's] explanation of 17
February 2006; by 22 March 2006 LIU-10 had not received any replies
to these letters.”
On
29 August 2006 the regional prosecutor's office received the
applicant's complaint of poor detention conditions and insufficient
medical assistance in LUI-10, as well as about the disciplinary
sanctions imposed on him by the LIU-10 authorities.
On
29 September 2006 the regional prosecutor's office informed the
applicant that they had carried out an inquiry into the facts
complained of and established the following. In 2006 LIU-10 had been
fully supplied with anti-tuberculosis treatment and thus the
necessary medication had been available to the applicant. The
applicant's allegations that Mr G. had extorted foreign currency from
him in exchange for expensive hepatoprotective medicines were
rebutted, as Mr G. had only advised the applicant of his right to
purchase additional treatment.
2. Application to the Court and further developments
(a) The applicant's correspondence with the Court
On
18 August 2005 the applicant sent his first letter to the Court.
On
8 December 2005 the applicant, referring to his poor state of health
and lack of adequate medical assistance in LIU-10, requested the
Court to indicate to the Government interim measures under Rule 39 of
the Rules of Court. He submitted that he was unable to submit copies
of his medical record kept in LIU-10.
On
26 January 2006 the President of the Chamber requested the Government
to submit factual information on the case.
On
20 April 2006 the Court forwarded the factual information submitted
by the Government to the applicant for comments, to be submitted
before 1 June 2006. On 4 May 2006 the LIU-10 authorities
received the Court's letter. According to the applicant, he was
served with it only on 25 May 2006.
On 26 July 2006 the Court acknowledged receipt of the
applicant's letter. On 11 August 2006 the Court's letter reached
LIU-10. The letter carries the LIU-10 incoming mail stamp.
On
8 September 2006 the Court informed the applicant that his case had
been communicated to the Government. On 22 September 2006 the Court's
letter reached LIU-10. The letter carries the LIU-10 incoming mail
stamp placed next to a signature of the Section Registrar.
On
13 September 2006 the Court acknowledged receipt of the applicant's
letter. On 2 October 2006 the Court's letter reached LIU-10. The
letter carries the LIU-10 incoming mail stamp placed next to a
signature of a lawyer of the Registry.
On
19 September 2006 the Court acknowledged receipt of the applicant's
letters. On 13 October 2006 the Court's letter reached LIU-10. The
letter carries the LIU-10 incoming mail stamp placed next to a
signature of a lawyer of the Registry.
On 22 September 2006 the Court acknowledged receipt of
the applicant's letters. On 13 October 2006 the Court's letter
reached LIU-10. The letter carries the LIU-10 incoming mail stamp
placed next to a signature of a lawyer of the Registry.
(b) Sanctions imposed on the applicant
Between 13 February 2002 and 4 May 2005 the applicant was placed in a
disciplinary cell six times and reprimanded five times for failure to
comply with prison regulations.
The
applicant was placed in a disciplinary cell a further nine times. In
particular, on 28 October 2005 he was sanctioned for storing
prohibited items; on 1 and 22 March, 14 April, 24 May and 21 July
2006 for unauthorised visits to certain areas of a penitentiary
institution; on 14 June 2006 for smoking outside the designated area.
On 29 September 2006 he was again confined in a disciplinary cell for
swearing at an officer, and on 13 October 2006 he was punished for
sending a complaint to the Prosecutor General without the
authorities' permission.
On
17 March and 6 September 2006 the applicant was reprimanded for
swearing. Two more reprimands were given him, on 10 July and
14 August 2006, for unauthorised visits to certain areas of a
penitentiary institution.
(c) Conversations with the LIU-10 officials
On
14 February 2006 the applicant handed over to the LIU-10 authorities
a sealed letter to the Court. On the same date Mr S., the new deputy
head of LIU-10, and two other officials, Mr K. and Mr L., organised a
meeting with the applicant and discussed the contents of the letter.
The case file contains a certificate signed by the three officials,
which reads as follows:
“On 14 February 2006 a conversation was held with
the convict Mechenkov in the educational work unit [of LIU-10]
concerning the sealed complaint he had lodged. In the course of the
conversation Mechenkov refused to inform the [LIU-10] officers of the
purpose of the complaint and of its content.”
According
to the applicant, on 27 March 2006 Mr S. in the presence of Mr K.
said to the applicant, alluding to the latter's application to the
Court, that he “had got mixed up with the State that had no
mercy” and that even if he survived in prison, he might be hit
by a car after his release.
On
7 July 2006 Mr S., Mr K. and Mr L. held another meeting with the
applicant and issued a certificate analogous to that of 14 February
2006. On the same date they sent the applicant's letter to the Court.
On
2 August 2006 Mr S., Mr K. and Mr L. discussed his sealed complaint
to the Court with the applicant and issued a certificate to that
effect.
On
19 and 27 October 2006 Mr S., Mr K. and Mr L. issued certificates
confirming that they had had conversations with the applicant
concerning his sealed complaints and stating that the applicant had
refused to disclose their contents. On the same dates the LIU-10
authorities sent the applicant's letters to the Court.
On
17 December 2006 and 9 January 2007 Mr L. issued certificates
confirming that he had conversed with the applicant and that the
latter had refused to disclose the contents of his sealed letters. On
18 December 2006 and 9 January 2007 the LIU-10 authorities sent the
applicant's letters to the Court.
II. MEDICAL documents
submitted by the Government
The Government submitted to the Court copies of a
number of documents related to the applicant's medical history. Most
of the copies are of poor quality.
Majority
of the documents relate to the events between June 1996 and March
2003 and concern the treatment that the applicant received on account
of tuberculosis. The documents submitted that relate to the
applicant's hepatitis C may be summarised as follows.
A barely legible one-page document entitled “Discharge
summary” is dated 18 December 2003; it is unclear which medical
institution issued it. It transpires from the document that by 18
December 2003 the applicant had been diagnosed with chronic hepatitis
of unconfirmed aetiology in inactive phase.
A record dated 5 November 2004 that appears in a
document entitled “Medical record” lists the applicant's
diagnosises, including chronic viral hepatitis C with zero activity.
The
case file contains one page of the “Discharge summary”.
It is clear from the content of the document that the discharge
summary contains more than one page. The document confirms that
between 25 October 2004 and 7 February 2005 the applicant was
kept in the MSTB and diagnosed with infiltrative tuberculosis
concurrent with chronic viral hepatitis C with zero activity. It
transpires from the document that the applicant had unspecified blood
tests, chest X-ray and electrocardiogram.
According
to a one-page document that presumably forms part of a medical
record, on 11 February 2005 the applicant visited a doctor and
complained that he had been infected with hepatitis C in UF-91/15.
The applicant, who had refused to take anti-tuberculosis treatment,
was prescribed with essenciale, vitamin B6 and two more medicines,
the names of which are illegible.
The case file contains a barely legible one-page
document from which it transpires that the applicant spent some time
in an unspecified medical institution with a diagnosis of recurrence
of tuberculosis concurrent with viral hepatitis C with zero activity.
The document contains no information concerning the treatment
prescribed to the applicant.
III. RELEVANT DOMESTIC LAW
Article 91 § 2 of the Russian on Execution of
Sentences of 1997 («Уголовно-исполнительный
Кодекс
РФ»),
as amended on 8 December 2003, as well as Rule 53 of the Internal
Regulations of Correctional Facilities adopted by Decree no. 205 of
the Russian Ministry of Justice of 3 November 2005, provide that
all detainees' incoming and outgoing correspondence is subject to
censorship by the administration of the correctional facility.
Correspondence with courts, prosecutors, penitentiary officials, the
Ombudsman, the public monitoring board and the European Court is not
subject to censorship.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION on
account of infection with hepatitis C
The
applicant complained under Article 3 of the Convention that he had
been infected with hepatitis C after his incarceration in
October 2001. Article 3 of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
The
Government submitted that the applicant could not have contracted
hepatitis C in any penitentiary facility after 28 October 2001
because since that date all medical procedures in the penitentiary
system's facilities had been done with disposable or sterile
instruments. In the Government's view, the applicant had not been
duly diligent as regards to his health and could have contracted
hepatitis C in the usual ways before his arrest in October 2001.
The
applicant contested the Government's submissions. He submitted that
in 1995 and 1996 he had undergone three surgical procedures while in
detention that the Government had failed to mention. He also
explained that between August 2000 and October 2001 he had undergone
medical check-ups that had revealed no hepatitis C.
B. The Court's assessment
The
Court reiterates that, pursuant to Article 35 § 1 of the
Convention, it may only deal with a matter within a period of six
months of the final decision in the process of exhaustion. If no
remedies are available or if they are judged to be ineffective, the
six-month period in principle runs from the date of the act
complained of (see Hazar and Others v. Turkey (dec.), nos.
62566/00 et seq., 10 January 2002). Special considerations may apply
in exceptional cases where an applicant first avails himself of a
domestic remedy and only at a later stage becomes aware, or should
have become aware, of the circumstances which make that remedy
ineffective. In such a situation, the six-month period may be
calculated from the time when the applicant becomes aware, or should
have become aware, of those circumstances (see Bulut and Yavuz
v. Turkey (dec.), no. 73065/01, 28 May 2002).
The
Court further points out that it is not open to it to set aside the
application of the six-month rule solely because a respondent
Government have not made a preliminary objection based on that rule,
since the said criterion, reflecting as it does the wish of the
Contracting Parties to prevent past events being called into question
after an indefinite lapse of time, serves the interests not only of
respondent Governments but also of legal certainty as a value in
itself. It marks out the temporal limits of the supervision carried
out by the organs of the Convention and signals to both individuals
and State authorities the period beyond which such supervision is no
longer possible (see Walker v. the United Kingdom (dec.),
no. 34979/97, ECHR 2000-I).
Turning
to the circumstances of the present case, the Court notes that,
according to the Government, the applicant was diagnosed with chronic
hepatitis C for the first time on 29 November 2004 (see paragraph 28
above). The applicant did not allege that he had become aware of the
diagnosis at a later date. The present application was lodged on 18
August 2005, more than six months after 29 November 2004.
The
Court further notes that the applicant attempted to bring his
grievances to the attention of the domestic authorities. In
particular, early in 2005 he complained about his infection with
hepatitis C to the prosecutor's office. He also lodged a statement of
claims with a district court, but did not take the appropriate steps
to have the case finally decided. Given that the Government did not
plead non-exhaustion, the Court is not in a position to determine
whether the applicant had exhausted effective domestic remedies
available to him, if any, in respect of the infection complaint. In
any event, the Court does not deem it necessary to determine the
benchmark for the calculation of the six-month period for the
following reason.
The
Court observes that the circumstances of the applicant's infection
with hepatitis C were contested between the parties. At the outset of
the proceedings before the Court the applicant insisted that he could
have become infected with the virus of hepatitis C after his arrest
in October 2001. The Government refuted his allegations and presumed
that the infection could have occurred before the arrest. The
applicant did not agree with the Government and noted that in 1995
and 1996 he had undergone surgical procedures, which the Government
had not mentioned. He asserted that between August 2000 and October
2001 he had undergone medical check-ups which had revealed no
hepatitis C.
The
Court notes that an ordinary medical check-up does not suffice to
reveal chronic hepatitis. Considering that the applicant did not
submit any medical evidence that he had undergone a specific blood
test for hepatitis C before his incarceration in October 2001, the
Court concludes that the applicant's allegations relating to his
infection with the hepatitis C virus did not go beyond speculation
and assumption.
In
the light of the above, the Court finds that the material in the case
file does not enable it to conclude beyond all reasonable doubt that
the applicant contracted chronic hepatitis C after his incarceration
on 28 October 2001 and that such infection could be imputable to
the respondent State.
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION on
account of RISK OF REcurrence OF TUBERCULOSIS AND INFECTION WITH
HEPATITIS A
The
applicant complained under Article 3 of the Convention that in LIU-10
he had been held with inmates suffering from active tuberculosis and
hepatitis A and thus could have become infected with those illnesses.
A. Submissions by the parties
The
Government contested the applicant's allegations. They submitted that
the applicant had never shared a cell with active tuberculosis
carriers. They further insisted that no case of infection with
hepatitis had been registered in the penitentiary institutions of
Russia since 28 October 2001.
The
applicant disagreed with the Government and rebutted their
allegations and claimed that one of his inmates had contracted
hepatitis A in LIU-10, while a number of other detainees had been
infected with HIV and hepatitis there. He did not produce any
evidence in support of his position.
B. The Court's assessment
The Court observes at the outset that it has already
examined cases concerning alleged violations of Article 3 of the
Convention on account of poor conditions of detention entailing high
risks of contracting tuberculosis (see, for example, Kalashnikov
v. Russia, no. 47095/99, § 98, ECHR 2002 VI,
and Solovyev v. Russia (dec.), no. 76114/01, 27 September
2007). Accordingly, it considers that the applicant's complaint about
risks of recurrence of tuberculosis and infection with hepatitis A
could fall within the ambit of Article 3 of the Convention.
However,
the Court notes that the applicant's allegations were not supported
by any proof. It takes into consideration that the applicant might
have experienced difficulties in procuring documentary evidence.
Nevertheless, the Court points out that in cases where detainees were
unable to produce documents to support their complaints it has relied
on other evidence, for example, written statements signed by
eyewitnesses (see, for example, Khudobin v. Russia,
no. 59696/00, § 87, ECHR 2006 ... (extracts)).
Accordingly, it was open to the applicant to provide the Court with
written statements by those of his inmates who had suffered from
active tuberculosis or hepatitis A, which he failed to do.
Thus, the Court is not persuaded that the applicant
made a prima facie case as regards the alleged
risks of recurrence of tuberculosis and infection with hepatitis A.
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION on
account of INADEQUATE MEDICAL ASSISTANCE
90. The
applicant complained under Article 3 of the Convention that the
LIU-10 personnel had not provided him with medical treatment adequate
to his hepatitis C concurrent with tuberculosis.
A. Submissions by the parties
91. The
Government contended that the medical assistance
provided to the applicant while in detention had been adequate. The
applicant had not been subjected to medical tests for hepatitis C
upon his arrest and placement in custody because he had demonstrated
no clinical evidence of the illness and the prison regulations then
in force had not provided for mandatory hepatitis C tests. The
Government submitted that they could not produce a copy of the
applicant's medical record for the period between 10 June 1996 and 28
May 1998 because it had been destroyed. On 29 November 2004 the
applicant had been diagnosed with chronic hepatitis C. The absence of
acute hepatitis had proven that the infection with the virus had
occurred before the placement in the penitentiary facility. Once the
illness had been revealed, the applicant had received essenciale,
cerucal, riboksin and vitamins. The applicant had not suffered from
acute hepatitis C while in LIU-10 and had not required inpatient
treatment. In the absence of clinical evidence of acute hepatitis C
the applicant had been provided with palliative care and subjected to
monitoring of blood biochemical characteristics and dynamic
therapeutic control. The applicant had been repeatedly placed in
LIU-10 on account of tuberculosis where he had been prescribed with
anti-tuberculosis treatment. However, on several occasions he had
refused to take the prescribed medicines. According to the
Government, the existing system of providing detainees with medical
assistance is compatible with Article 3 of the Convention and the
applicant's complaint was entirely unsubstantiated.
The
applicant maintained his submissions and insisted that his rights
under Article 3 of the Convention had been infringed.
B. The Court's assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) Establishment of facts
The
Court observes that the parties to the present case presented
differing accounts of the medical assistance rendered to the
applicant in respect of his illnesses. It also notes the difficulties
for the applicant in obtaining the necessary evidence in support of
allegations in cases where the respondent Government are in
possession of the relevant documentation and fail to submit it. Where
the applicant makes out a prima facie case
of treatment contrary to Article 3 of the Convention and the Court is
prevented from reaching factual conclusions for lack of such
documents, it is for the Government to argue conclusively why the
documents in question cannot serve to corroborate the allegations
made by the applicants, or to provide a satisfactory and convincing
explanation of how the events in question occurred (see, mutatis
mutandis, Toğcu v. Turkey, no. 27601/95, § 95,
31 May 2005; Akkum and Others v. Turkey, no. 21894/93,
§ 211, ECHR 2005-... (extracts)).
The Court observes that, when communicating this case, it asked the
Government whether the medical treatment available to the applicant
on account of his tuberculosis and hepatitis C had been adequate for
his condition and sufficient for preventing further deterioration of
his health.
The
Government submitted their written observations in this respect.
Regrettably, they did not produce a copy of the applicant's entire
medical file. Instead they provided copies of a few documents, some
of which were barely legible. The information that can be obtained
from them relates mostly to the applicant's tuberculosis. The data at
the Court's disposal relating to the treatment available to the
applicant on account of his hepatitis C are sparse (see paragraphs 64
– 70 above).
The
Government stated that the applicant's medical records for 1996 to
1998 had been destroyed. The Court reiterates that the authorities of
the penitentiary institution should have kept a record of the
applicant's state of health and the treatment he underwent while in
detention (see Khudobin v. Russia, no. 59696/00,
§ 83, ECHR 2006 ... (extracts)). The Court further
notes that the Government gave no reason for their failure to submit
legible copies of the applicant's medical file that should have
contained records made after 1998. Moreover, the Government did not
provide any medical record related to the applicant's hepatitis made
after 25 October 2005 (see paragraph 33 above). It follows that the
Government disregarded the opportunity to support their submissions
by evidence to which they had sole access.
The
Court therefore considers that, where necessary, it can legitimately
draw inferences from the Government's failure to provide legible
medical documents.
(b) General principles enshrined in the Court's
case-law
The
Court reiterates that Article 3 of the Convention prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment (see Labita v. Italy, judgment of 6 April 2000,
Reports of Judgments and Decisions 2000-IV, § 119). Such
ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3 of the Convention. The assessment
of this minimum level 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 state of health
of the victim (see Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, § 162).
Although the purpose of such treatment is a factor to be taken into
account, in particular the question of whether it was intended to
humiliate or debase the victim, the absence of any such purpose does
not inevitably lead to a finding that there has been no violation of
Article 3 (e.g. Peers v. Greece, no. 28524/95, § 74,
ECHR 2001-III, and Valašinas v. Lithuania, no.
44558/98, § 101, ECHR 2001-VIII).
The
Court has consistently stressed that the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment (see Labita, cited above, § 120).
Nevertheless, in the light of Article 3 of the Convention, the State
must ensure that a person is detained under conditions which are
compatible with respect for human dignity, that the manner and method
of the execution of the measure do not subject the individual to
distress or hardship exceeding the unavoidable level of suffering
inherent in detention, and that, given the practical demands of
imprisonment, the person's health and well-being are adequately
secured (see Kudła v. Poland [GC], no. 30210/96, §§
92-94, ECHR 2000-XI), with the provision of the requisite medical
assistance and treatment (see, mutatis mutandis, Aerts v.
Belgium, judgment of 30 July 1998, Reports 1998-V,
p. 1966, §§ 64 et seq.).
Although
the medical assistance available in prison hospitals may not always
be at the same level as in the best medical institutions for the
general public, the State must ensure that the health and well-being
of detainees are adequately secured by, among other things, providing
them with the requisite medical assistance (see Kudła,
cited above, § 94, ECHR 2000-XI; see also Hurtado v.
Switzerland, judgment of 28 January 1994, Series A no. 280-A,
opinion of the Commission, pp. 15-16, § 79). Furthermore,
if the authorities decide to maintain a seriously ill person in
detention, they must demonstrate special care in guaranteeing such
conditions of detention that correspond to his special needs
resulting from his disability (see Farbtuhs v. Latvia,
no. 4672/02, § 56, 2 December 2004).
(c) Application of the above principles to the
present case
In
order to establish whether the applicant received requisite medical
assistance while in detention, it is crucial to
determine whether the State authorities provided him with the minimum
scope of medical supervision for timely diagnosis and
treatment of his illnesses (see Popov v. Russia, no. 26853/04,
§ 211, 13 July 2006).
First,
the Court will consider whether the applicant was promptly diagnosed
with chronic hepatitis C.
According
to the Government, the applicant was not subjected to blood
tests for hepatitis C upon his incarceration on 28 October 2001 for
the reason that by that time such tests had not been mandatory. The
Court agrees that it may be excessive to subject each and every
detainee to a range of medical tests for all contagious diseases.
Nevertheless, certain tests may be indispensable for proper
assessment of a patient's state of health; a decision whether to
carry out certain diagnostics or not should be based on an
individual's medical history.
The
Court notes that from 1996 the applicant was regularly prescribed and
received hepatotoxic anti-tuberculosis treatment (see paragraphs 8, 10
and 29 above), which may cause liver damage. In such circumstances it
considers that the minimum scope of medical supervision required for
the applicant's condition could have included regular blood tests for
hepatitis.
The Court observes that the evidence in its possession does not allow
establishing with certainty the exact date on which the applicant was
diagnosed with chronic hepatitis C. The medical records submitted by
the Government indicate that the applicant had been diagnosed with
hepatitis of unconfirmed aetiology by 18 December 2003 (see paragraph
66 above). In their observations the Government submitted that the
applicant had undergone the first test for hepatitis on 29 November
2004 (see paragraph 9191. The Government contended that the medical assistance provided to the applicant while in detention had been adequate. The applicant had not been subjected to medical tests for hepatitis C upon his arrest and placement in custody because he had demonstrated no clinical evidence of the illness and the prison regulations then in force had not provided for mandatory hepatitis C tests. The Government submitted that they could not produce a copy of the applicant's medical record for the period between 10 June 1996 and 28 May 1998 because it had been destroyed. On 29 November 2004 the applicant had been diagnosed with chronic hepatitis C. The absence of acute hepatitis had proven that the infection with the virus had occurred before the placement in the penitentiary facility. Once the illness had been revealed, the applicant had received essenciale, cerucal, riboksin and vitamins. The applicant had not suffered from acute hepatitis C while in LIU-10 and had not required inpatient treatment. In the absence of clinical evidence of acute hepatitis C the applicant had been provided with palliative care and subjected to monitoring of blood biochemical characteristics and dynamic therapeutic control. The applicant had been repeatedly placed in LIU-10 on account of tuberculosis where he had been prescribed with anti-tuberculosis treatment. However, on several occasions he had refused to take the prescribed medicines. According to the Government, the existing system of providing detainees with medical assistance is compatible with Article 3 of the Convention and the applicant's complaint was entirely unsubstantiated.91. The Government contended that the medical assistance provided to the applicant while in detention had been adequate. The applicant had not been subjected to medical tests for hepatitis C upon his arrest and placement in custody because he had demonstrated no clinical evidence of the illness and the prison regulations then in force had not provided for mandatory hepatitis C tests. The Government submitted that they could not produce a copy of the applicant's medical record for the period between 10 June 1996 and 28 May 1998 because it had been destroyed. On 29 November 2004 the applicant had been diagnosed with chronic hepatitis C. The absence of acute hepatitis had proven that the infection with the virus had occurred before the placement in the penitentiary facility. Once the illness had been revealed, the applicant had received essenciale, cerucal, riboksin and vitamins. The applicant had not suffered from acute hepatitis C while in LIU-10 and had not required inpatient treatment. In the absence of clinical evidence of acute hepatitis C the applicant had been provided with palliative care and subjected to monitoring of blood biochemical characteristics and dynamic therapeutic control. The applicant had been repeatedly placed in LIU-10 on account of tuberculosis where he had been prescribed with anti-tuberculosis treatment. However, on several occasions he had refused to take the prescribed medicines. According to the Government, the existing system of providing detainees with medical assistance is compatible with Article 3 of the Convention and the applicant's complaint was entirely unsubstantiated.
above). The Court points out that more than eleven months elapsed
between the moment when the applicant's hepatitis had been for the
first time mentioned in his medical record and the date when the
first blood test was administered to confirm the diagnosis. In such
circumstances the Court cannot conclude that the applicant was
diagnosed with chronic hepatitis C in timely fashion.
Secondly,
the Court must determine whether the applicant received requisite
treatment in relation to his hepatitis C.
The
medical documents at the Court's disposal do not reveal whether the
applicant received any antiviral treatment on
account of his chronic hepatitis C after he had been diagnosed with
it. According to the Government, the LIU 10 doctors found
that in the absence of active hepatitis process such treatment was
unnecessary. The Court readily accepts that it was for the doctors
who physically examined the applicant to assess whether he required
antiviral treatment. However, the materials in the Court's possession
do not allow it to be established with clarity on what date and which
doctor made such a decision.
The
Court takes note of the Government's submissions that the applicant
had been subjected to monitoring of blood biochemical
characteristics and dynamic therapeutic control on account of his
chronic hepatitis C (see paragraph 91 above). However, the Government
did not submit detailed description of measures taken in the course
of the monitoring and control. Furthermore, they provided no
information as to whether the applicant had ever been examined by a
hepatologist, which would be at least reasonable considering the
hepatotoxic treatment that the applicant had received on account of
his tuberculosis.
Neither
did the Government provide the Court with information on the
treatment available to the applicant after 25 October 2005 (see
paragraph 33 above). In such circumstances the Court finds itself in
a position to infer from the Government's failure to submit copies of
relevant medical documents that the applicant did not receive
adequate medical assistance on account of his chronic hepatitis C
after that date in LIU-10 and IK-18.
In
the light of the above, the Court finds that the applicant was not
provided with the minimum scope of medical
supervision for timely diagnosis and treatment of his
hepatitis C while in detention and thus did not receive the medical
assistance required for his condition, which amounted to inhuman and
degrading treatment.
Therefore,
there has been a violation of Article 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION ON
ACCOUNT OF CONVERSATIONS WITH THE OFFICIALS
The
applicant complained under Article 34 of the Convention that the
LIU-10 authorities had put illicit pressure on him in relation to his
complaint to Strasbourg. In particular, he alleged that the LIU-10
authorities had demanded that he disclose the contents of his letters
to the Court and that they had impeded his correspondence with the
Court on a regular basis. He also insisted that the LIU-10
authorities had unfairly sanctioned him for his complaints to
Strasbourg. Article 34 of the Convention reads, in so far as
relevant, as follows:
“The Court may receive applications from any
person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. The parties' submissions
The
Government submitted that the LIU-10 officials had had ten
conversations with the applicant related to Strasbourg proceedings:
on 14, 17 and 28 February, 1 and 20 March, 3 and 14 April, 1 and
21 August, as well as on 13 October 2006. Two of those had been
organised in order to clarify the reasons why he had lodged the
application with the Court, but the applicant had refused to give any
explanations. Eight conversations had been aimed at helping the
applicant to resolve the questions he might have had while preparing
the documents for the Court and at the protection of his rights and
legitimate interests; the applicant had declined the assistance
offered. The conversations had taken place in the presence of several
officials and inmates, who had denied the applicant's allegations of
threats and psychological pressure. The Government submitted written
statements by the LIU-10 officials, confirming that they had not put
any pressure on the applicant in the course of their conversations
with him concerning the application to Strasbourg. On 16 February and
12 April 2006 the LIU-10 officials had had meetings with the
applicant concerning the translation of the Court's letters into
Russian. On several occasions two officials of the regional
prosecutor's office had discussed with the applicant the numerous
complaints he had lodged with them, but they had not touched upon the
application with the Court. The Government further claimed that the
applicant's sealed letters sent via the LIU-10 administration had not
been opened or censored. The applicant had been served with all
replies from the Court in sealed envelopes within seventy-two hours
of their receipt by LIU-10. The Government also submitted that
between 13 February 2002 and 13 October 2006 the applicant had
been confined fifteen times in a punishment cell. Each confinement
had been imposed on the applicant as a sanction for a breach of
prison rules. Furthermore, between 18 March 2003 and 6 September 2006
the applicant had received nine reprimands for breaches of prison
rules. None of the sanctions had been related to his application to
the Court. In sum, they insisted that there had been no hindrance
with the applicant's right to individual petition.
The
applicant contested the Government's submissions and asserted that he
had refused to disclose the contents of his letters to the Court to
the LIU-10 authorities because he had not trusted them. He further
submitted that he had been served with the Court's letters with
regular and substantial delays. According to the applicant, some of
his letters sent via the LIU-10 authorities had never reached the
Court. Furthermore, he insisted that he had never asked the LIU-10
authorities to translate the Court's letters into Russian but had
requested that they provide him with an independent translator.
Lastly, the applicant disagreed with the Government and claimed that
their allegations that he had breached the prison rules on many
occasions had been false.
B. The Court's assessment
1. Conversations with the LIU-10 officials
The
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
by Article 34 that applicants or potential applicants should be
able to communicate freely with the Court without being subjected to
any form of pressure from the authorities to withdraw or modify their
complaints (see, among other authorities, Akdivar and Others v.
Turkey, cited above, § 105, and Aksoy v. Turkey,
judgment of 18 December 1996, Reports 1996-VI, p. 2288, §
105). The expression “any form of pressure” must be taken
to cover not only direct coercion and flagrant acts of intimidation
of applicants or their legal representatives but also other improper
indirect acts or contacts designed to dissuade or discourage them
from pursuing a Convention remedy or having a “chilling effect”
on the exercise of the right of individual petition by applicants and
their representatives (see Fedotova v. Russia,
no. 73225/01, §§ 48-51, 13 April 2006; McShane
v. the United Kingdom, no. 43290/98, § 151, 28 May
2002; and Tanrıkulu v. Turkey [GC], no. 23763/94, §
130, ECHR 1999-IV, with further references).
Furthermore,
whether or not contacts between the authorities and an applicant are
tantamount to unacceptable practices from the standpoint of Article
34 must be determined in the light of the particular circumstances of
the case. In this respect, regard must be had to the vulnerability of
the complainant and his or her susceptibility to influence exerted by
the authorities (see the Akdivar and Others and Kurt
judgments, cited above, p. 1219, § 105, and pp.
1192-93, § 160, respectively). The applicant's position might be
particularly vulnerable when he is held in custody with limited
contacts with his family or the outside world (see Cotleţ v.
Romania, no. 38565/97, § 71, 3 June 2003).
The
Court notes that the LIU-10 authorities regularly held meetings with
the applicant to discuss the contents of his sealed letters to the
Court. The first meeting took place on 14 February 2006, shortly
after the Court's request for factual information had been sent to
the Government. The Government admitted that the LIU-10 authorities
had discussed the applicant's complaints to Strasbourg with him ten
times. Furthermore, the case file contains certificates confirming
that further meetings were organised on 2 August, 19 and 27 October
2006, as well as on 9 January 2007.
According
to the Government, the conversations had been organised with the sole
intention of helping the applicant. The Court is disinclined to
accept this argument. In its view, the LIU-10 officials should have
inferred from the applicant's constantly displayed reluctance to
answer their questions that he had not needed their assistance.
The
Court emphasises that the present application concerned primarily the
quality of medical assistance available to the applicant in LIU 10,
where he had been detained for a lengthy period. In the Court's view,
his health and well-being depended largely on the LIU-10 personnel.
In such circumstances regular conversations with the officials of the
very same facility might have indeed had a “chilling effect”
on the applicant's intention of pursuing a Strasbourg remedy.
The
Court considers that the applicant must have felt intimidated by the
repeated conversations with the LIU-10 officials apparently held
against his will and could have experienced a legitimate fear of
reprisals (see Popov, cited above, § 250). Accordingly,
such conversations constituted illicit pressure, which amounted to
undue interference with the applicant's right of individual petition.
Therefore,
there has been a violation of Article 34 of the Convention in this
respect.
2. The applicant's correspondence with the Court
The
Court reiterates that it is important to respect the confidentiality
of its correspondence since it may concern allegations against prison
authorities or prison officials. The opening of letters from the
Court or addressed to it undoubtedly gives rise to the possibility
that they will be read and may conceivably, on occasion, also create
the risk of reprisals by prison staff against the prisoner concerned
(see Klyakhin v. Russia, no. 46082/99, § 118,
30 November 2004).
The
Court emphasises that, pursuant to the Russian law in force,
correspondence of detainees with the Court is not subject to
censorship (see paragraph 71 above). The Court further notes that at
least five of its letters to the applicant bear LIU-10 incoming mail
stamps in the letter body (see paragraphs 50 – 54 above). The
Government did not put forward any explanation as to the origin of
those stamps and insisted that the Court's letters had been sealed
when given to the applicant.
Having
regard to the materials at its disposal, the Court cannot accept the
Government's argument and is bound to conclude that the LIU 10
authorities opened its letters to the applicant and stamped them as
regular incoming mail. The Court further observes that it is not in a
position to establish whether those letters were read by the
authorities. Nevertheless, the mere fact that those letters were
opened leaves room for reasonable suspicion that the applicant's
correspondence with the Court was censored by the authorities in
breach of the domestic law and Article 34 of the Convention.
Therefore,
there has been a violation of Article 34 of the Convention on this
account.
3. Sanctions imposed on the applicant and threats by the LIU-10
official
The
Court notes that the applicant insisted that he had been unlawfully
persecuted by the LIU-10 authorities. However, there is nothing in
the materials reviewed by the Court to suggest that the LIU-10
authorities had intended to punish the applicant for his complaint to
the Court when confining him to a disciplinary cell or reprimanding
him. The Court is satisfied with the Government's explanations
regarding the grounds for the disciplinary sanctions imposed on the
applicant. Consequently, it finds that those sanctions did not amount
to a hindrance of the applicant's right to individual petition.
Furthermore,
the applicant complained to the Court that one of the LIU 10
officials had implied that his life would be endangered unless he
withdrew his complaint to Strasbourg. However, those allegations were
not supported by any evidence.
Accordingly,
the Court finds that there has been no violation of Article 34 of the
Convention in this respect.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant raised a number of complaints alleging breach of his
rights. In particular, he relied on Article 6 of the Convention
complaining of overall unfairness of the proceedings against him that
ended on 8 April 2002 and of lack of access to court as
regards the civil proceedings against a private company. He further
complained under Article 13 of the Convention that the domestic
authorities had not provided him with a legal-aid lawyer to represent
him before the Court. Moreover, the applicant relied on Article 1 of
Protocol No. 1 to the Convention alleging that he had been deprived
of property by the private company. He further complained under
Article 2 of Protocol No. 4 that his freedom of movement had been
restricted by the fact that after the collapse of the Soviet Union he
had been granted Russian citizenship against his will. Lastly, the
applicant complained under Article 1 of Protocol No. 12 that the
domestic authorities' refusal to conditionally release him on health
grounds had been discriminatory and alleged that his infection with
hepatitis C had amounted to capital punishment contrary to Article 1
of Protocol No. 13.
Having
regard to all the material in its possession, and as far as it is
within its competence, the Court finds that the applicant's
submissions disclose no appearance of violations of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant asked the Court to determine the amount of compensation for
the suffering and distress caused by the alleged violations of his
rights.
The
Government noted that the applicant had not specified the amount of
his claims for just satisfaction.
The
Court considers that the applicant must have suffered distress and
frustration resulting from the lack of adequate medical assistance
available to him, aggravated by the fact that the State authorities
had interfered with his right to individual petition, and that this
cannot be sufficiently compensated for by the finding of a violation.
Making its assessment on an equitable basis, it awards the applicant
EUR 5,000 in respect of non-pecuniary damage, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
The
applicant did not make any claim in respect of the costs and expenses
incurred before the domestic courts and before the Court within the
time-limits set by the Court.
Accordingly,
the Court makes no award under this head.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaint concerning the alleged
lack of adequate medical assistance available to the applicant while
in detention admissible and the remainder of the complaints
inadmissible;
Holds that there has been a violation of
Article 3 of the Convention on account of the inadequate medical
assistance provided to the applicant while in detention;
Holds that the State has failed to fulfil its
obligation under Article 34 not to hinder the effective exercise of
the right of individual petition in respect of the State authorities'
conversations with the applicant and opening of his correspondence
with the Court;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(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;
Done in English, and notified in writing on 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
