European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

CASE OF KHAYLETDINOV v. RUSSIA

 

(Application no. 2763/13)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

12 January 2016

 

 

 

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 Khayletdinov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          George Nicolaou,
          Helen Keller,
          Johannes Silvis,
          Dmitry Dedov,
          Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 1 December 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 2763/13) 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 Ildar Fayzrakhmanovich Khayletdinov (“the applicant”), on 2 December 2012.

2.  The applicant, who had been granted legal aid, was represented by Mr I. Makarov, a lawyer practising in Astrakhan. 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 that he had not benefited from adequate medical care in detention, had not had an effective remedy for his complaint about the poor medical services and that his pre-trial detention had been unreasonably long.

4.  On 27 November 2013 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1953 and is serving his sentence in correctional colony no. 2 in the Astrakhan Region.

A.  Arrest and detention

6.  On 9 May 2012 the applicant was arrested on suspicion of murder committed during a fight with the victim. Two days later the Kirovskiy District Court of Astrakhan authorised his remand in custody, having noted the gravity of the charges, his previous convictions, including for violent crimes, his failure to “get on the road to improvement”, the absence of an “official” source of income, and his lack of dependants.

7.  That decision was upheld on appeal by the Astrakhan Regional Court, which fully endorsed the District Court’s reasoning. In addition, the Regional Court took into account that the applicant was suffering from the human immunodeficiency virus (HIV) but stated that there was no medical evidence that he could not continue being detained in the conditions of a temporary detention facility.

8.  Another extension of the applicant’s detention followed on 9 July 2012, when the District Court accepted the investigator’s arguments that he was likely to re-offend, abscond and interfere with the investigation. The District Court linked those risks to the gravity of the charges against the applicant, his having received “negative characteristics” at his place of residence, as well as his having already been “the subject of criminal prosecution”. At the same time the court examined medical evidence produced by the applicant in support of his claim that the fact that he was suffering from an advanced stage of HIV precluded his detention. The District Court dismissed the claim, stressing that the applicant regularly received medication prescribed by a prison doctor and that his detention in the temporary detention facility did not pose a risk to his health.

9.  The District Court issued further orders extending the applicant’s pre-trial detention on 2 August, 6 September and 7 November 2012. Each time, it relied on the gravity of the charges and the risk flowing of the applicant absconding, interfering with the course of justice and reoffending. Neither detention order mentioned that the applicant had a criminal record. The applicant’s arguments about the progress of his HIV infection and the rapid deterioration of his health did not convince the District Court. The order of 7 November 2012 extended the applicant’s detention until 9 December 2012. It was upheld on appeal by the Astrakhan Regional Court on 14 November 2012, with reference to the gravity of the charges and the applicant’s “personality”. The relevant part of the decision reads as follows:

“On 11 May 2012 ... the Kirovskiy District Court of Astrakhan ordered [the applicant’s] detention. Subsequently, the detention was lawfully extended. ...

In extending the detention for up to seven months, the court reasonably took into account that [the applicant] was charged with a particularly serious criminal offence and that, in view of his personality and the circumstances of the case, he was liable to reoffend or destroy the evidence.

The court also correctly held that the case was particularly complex, due to the large number of investigatory activities and complex expert examinations to be conducted. The court also took into account the applicant’s lengthy treatment in the prison hospital.

The court correctly concluded that there were no grounds for changing the measure of restraint.”

The Regional Court did not address the applicant’s arguments, raised in his statement of appeal, that the investigating authorities significantly delayed a number of procedural actions, including the expert examination scheduled as early as June 2012 and not yet performed.

10.  The District Court further extended the applicant’s pre-trial detention on 8 December 2012, summarily referring to his “personality” and “socially dangerous conduct”. The court also pointed out that some unspecified expert examinations had been conducted, which had “objectively influenced the length of the investigation”.

11.  On 30 December 2012 the applicant’s pre-trial detention was again extended on the grounds of the gravity of the charges and the continued risk of his absconding and interfering with the course of justice. The court used similar wording as in the previous detention orders.

12.  On 16 March 2013 the applicant was served with the final version of the bill of indictment. The bill indicated that the applicant had no criminal record.

13.  On 6 August 2013 the District Court convicted the applicant of murder. The court found that he had killed the victim in the course of an altercation caused by the victim’s insults. The District Court sentenced the applicant to seven years of imprisonment, having taken into account the following mitigating circumstances: the applicant had no criminal record, was “positively characterised”, had surrendered himself to the police, had confessed to the killing and felt deep remorse, and the victim had behaved provocatively having initiated the conflict with the applicant.

B.  Applicant’s state of health

1.  Applicant’s account

14.  In January 2004 the applicant was diagnosed with stage 4A HIV. He was taken under the supervision of specialists of the Astrakhan Regional Centre for Protection from AIDS (hereinafter “the AIDS Centre”).

15.  Medical certificates provided by the applicant show that he had started receiving antiretroviral therapy on 22 March 2011 with very positive results. The viral load had significantly decreased and the applicant’s immune status had improved. A CD4 cell-count test carried out on 17 February 2012 showed that the level of CD4 cells was 489 cells/mm³.

16.  On 11 May 2012 the applicant was placed in detention facility no. 1. On the same date he was examined by a doctor, who recorded no complaints and diagnosed him with a stomach ulcer in remission.

17.  On 26 June 2012 doctors from the AIDS Centre recorded a deterioration in the applicant’s condition. They recommended continuation of the antiretroviral therapy and an in-patient examination.

18.  Between 12 July and 12 September 2012 the applicant underwent a check-up in the prison hospital of correctional colony no. 2 (“the hospital”). He was diagnosed with chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, fungal esophagitis, urolithiasis, and hepatic haemangioma.

19.  It appears that on 16 July 2012 an immunological test was performed. It showed that the level of CD4 cells was 649 cells/mm³.

20.  Since August 2012 the doctors have again recorded a deterioration in the applicant’s condition and an increase in his viral load. They linked the deterioration to prior interruptions in the antiretroviral therapy. It is not clear from the documents submitted by the applicant when and why those interruptions occurred.

21.  On 20 September 2012 a doctor from the AIDS Centre diagnosed the applicant with stage 4A HIV and fungal esophagitis, and recommended that antiretroviral therapy be continued.

22.  On 26 September 2012, on a recommendation of the medical staff of the AIDS Centre, the applicant was again admitted to the hospital. He underwent treatment for HIV and fungal esophagitis. On 8 October 2012 he returned to the detention facility.

23.  Throughout his detention the applicant was prescribed a special diet.

2.  Government’s account

24.  According to a typed copy of the applicant’s medical file provided by the Government, on admission to detention facility no. 1 the applicant was examined by a doctor whom he informed that he was suffering from HIV.

25.  On 16 May 2012 medical staff from the AIDS Centre were allowed to see the applicant. The doctors noted that he was suffering from stage 4A HIV and recommended that his antiretroviral therapy be continued. On the same date the applicant received one month’s dose of antiretroviral drugs (Reyataz and Combivir).

26.  The applicant continued being monitored by the medical staff of the AIDS-Centre, who examined him again on 26 June 2012. Following their recommendations, and in response to the applicant’s complaint of fatigue and pain in the epigastrium (upper abdomen), on 12 July 2012 he was transferred to the hospital for an in-depth examination. On the same date it was noted in his medical file that he was receiving antiretroviral drugs. The entries dated 2 and 6 August 2012 indicated that he had been taking those drugs.

27.  While at the hospital, the applicant was monitored by an infectious diseases specialist, who examined him on twenty-four occasions. The applicant also underwent an ultrasound examination and a fibrogastroduodenoscopy. On 27 August 2012 he was examined by an urologist and a gastroenterologist in a civil hospital. He was also observed by an otolaryngologist and a neurologist. The final diagnosis was: HIV infection aggravated by secondary illnesses, chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, oesophageal candidiasis, hepatic hemangioma, chronic prostatitis, chronic cholecystitis, fungal esophagitis, and a duodenal bulb ulcer. The applicant received treatment for those illnesses.

28.  On 12 September 2012, having found that the applicant’s condition had improved, the hospital discharged him.

29.  On 20 September 2012 a doctor from the AIDS Centre examined the applicant at the detention facility. The doctor noted that the applicant was taking the antiretroviral drugs with strict adherence, and recommended virological and immunological testing, as well as another ultrasound examination and a fibrogastroduodenoscopy.

30.  On 26 September 2012 the applicant was admitted to the hospital for additional tests. On 8 October he was transferred back to the detention facility.

31.  On 18 October 2012 the applicant complained of fatigue, coughing and headaches. A doctor diagnosed chronic bronchitis and prescribed him anti-candidiasis and cough medication, as well as vitamins.

32.  On 4 November 2012 an entry made in the applicant’s medical file indicated that the “last” immunological test had shown the level of CD4 cells at 513 cells/mm³.

33.  On 13 November 2012 the applicant complained to a doctor of heaviness in his abdomen, dizziness and heartburn. The doctor noted that those were the effects of his not complying with the special diet and prescribed medication for his ulcer and gastroduodenitis.

34.  On 27 November 2012 the applicant was examined in response to his complaints of fatigue, pain in the abdomen, and pyrosis. The doctor noted that the applicant had been receiving antiretroviral therapy and recommended his transfer to hospital for an examination and another diagnosis.

35.  On the applicant’s admission to the hospital on 3 December 2012, his complaints of fatigue, heartburn and stomach aches were recorded. On the same date it was again noted that he was receiving antiretroviral drugs. At the hospital he was seen by an infections specialist several times a week, examined by a neurologist and an otolaryngologist, and underwent a fibrogastroduodenoscopy. In addition to his previously recorded illnesses, the applicant was diagnosed with a prostate adenoma. He received treatment for his non-communicable diseases, and was prescribed the same antiretroviral drugs as before.

36.  On 18 January 2013 the applicant was dismissed from the hospital “in a satisfactory condition”, with the proviso that he had to be actively supervised by the detention facility medical personnel. On the same date he was examined by a doctor at the detention facility. The doctor noted that the applicant needed “dynamic supervision” and prescribed medication for his pancreatitis and stomach ulcer.

37.  On 23 January 2013, in response to the applicant’s complaint of back pains, he was prescribed anti-inflammatory drugs.

38.  On 12 February 2013 the applicant complained to a psychiatrist of sleeping problems and irritability, and was prescribed antidepressants.

39.  On 20 March 2013 a doctor from the AIDS Centre paid the applicant a visit. Following the doctor’s recommendation, the applicant was yet again admitted to hospital. On arrival he complained of poor appetite, fatigue, heartburn, pains in his chest and stomach ache. He was then seen by an infectious diseases specialist, an ophthalmologist, an otolaryngologist, a cardiologist and a neurologist. They concluded that there was no change in his diagnosis and prescribed him treatment for the non-communicable infections. On 3 April 2013 it was noted that the applicant was regularly taking antiretroviral drugs. A week later, despite the lack of significant improvement in his condition, he was discharged from the hospital since he had to appear at a court hearing.

40.  On 19 June 2013 the applicant was re-admitted to the hospital. Under the supervision of the infectious diseases specialist he received treatment for cholecystitis and gastroduodenitis. He was also examined by a neurologist, an otolaryngologist and an ophthalmologist, and was diagnosed with cerebrovascular disease. An entry in the record of 19 June 2013 showed that the applicant had enough drugs to last until 23 June 2013. The entry dated 25 June 2013 mentioned that he had not complied with the special diet prescribed to him. On 9 July 2013 the applicant was discharged in “satisfactory condition”, having been provided with antiretroviral drugs until 23 July 2013.

41.  On the applicant’s admission to correctional colony no. 2 on 24 October 2013, he was examined by prison doctors, who noted that he was receiving antiretroviral therapy.

42.  On 20 November 2013, in response to the applicant’s complaints of pain in the abdomen, he was examined by a prison doctor. A fibrogastroduodenoscopy was carried out on 22 November 2013, and he was prescribed medication for gastroduodenitis.

43.  On 10 December 2013 the applicant was examined by an infectious diseases specialist from the AIDS Centre. The doctor observed the applicant’s complaints of pain in the oesophagus and the chest, and noted that he was receiving antiretroviral drugs, namely Reyataz and Combivir. The doctor recommended that the applicant continue with the therapy and undergo an immunological test. He also suggested that he be subjected to an in-patient examination. The applicant refused to be admitted to the hospital.

C.  Complaints to the authorities

1.  Complaint to the administration of the detention facility

44.  On 12 and 16 November 2012 the applicant’s lawyer wrote to the administration of detention facility no. 1, drawing their attention to the applicant’s state of health and asking for his examination by a medical expert. On 13 November 2012 the facility director informed the lawyer that there was no evidence that the applicant was suffering from an illness preventing detention and that, accordingly, there were no grounds for a medical expert examination.

45.  On 4 February 2013 the applicant’s lawyer reiterated his request.

2.  Complaint to the administration of the investigatory committee

46.  On 10 December 2012 the applicant’s lawyer requested the investigator in charge of the applicant’s criminal case to order a medical examination of the applicant. On 13 December 2012 the request was refused. However, on 4 February 2014 that decision was revoked, and the applicant’s medical expert examination was authorised.

3.  Complaint to the court

47.  On 17 January 2013 the applicant’s lawyer complained to the Kirovskiy District Court of Astrakhan of the correctional colony administration’s inaction and asked the court to authorise the applicant’s medical examination. On 1 April 2013 the court dismissed the complaint and refused the examination request.

II.  RELEVANT DOMESTIC LAW

A.  Provisions governing the quality of medical care afforded to detainees

48.  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”), enacted 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.

49.  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.

50.  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.

51.  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.

52.  The Internal Regulations of Correctional Institutions, in force since 3 November 2005, deal with every aspect of inmates’ lives in correctional institutions. In particular, paragraph 125 of the Regulations provides that inmates who are willing and able to pay for it may receive additional medical assistance. In such a situation, medical specialists from a State or municipal civilian hospital are to be called to the medical unit of the correctional institution where the inmate is being detained.

53.  Governmental Decree no. 3 of 14 January 2011 concerning the medical examination of individuals suspected or accused of criminal offences regulates the procedure for authorising and performing a medical examination of a detainee to determine whether he or she is suffering from a serious illness preventing his or her detention. It also contains a list of such serious illnesses. A decision on the medical examination of a detainee must be taken by the director of the detention facility following a written request from a detainee or his or her legal representative or a request by the head of the medical unit of that detention facility. The examination is performed by a medical commission of a facility appointed by the health service executive body of the respective region of the Russian Federation. The activities of the medical commission are determined by the Ministry of Health and Social Development of the Russian Federation.

54.  The examination must be performed within five days of the medical facility receiving the relevant order. Following the examination, the medical commission issues a report stating whether the detainee is suffering from a serious illness listed in the Decree. If a detainee who was previously examined by the medical commission experiences deterioration in his or her health, a new medical examination can be authorised.

55.  The list of serious illnesses preventing the detention of suspected or accused persons includes stage 4C or 5 HIV infection^[1] accompanied by stable health impairment leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.

B.  Provisions establishing legal avenues for complaints about the quality of medical assistance

56.  The provisions of domestic law establishing legal avenues for complaints about quality of medical services are cited in the following judgments: Koryak v. Russia (no. 24677/10, §§ 46-57, 13 November 2012); Dirdizov v. Russia (no. 41461/10, §§ 47-61, 27 November 2012); and Reshetnyak v.  Russia (no. 56027/10, §§ 35-46, 8 January 2013).

C.  Provisions governing detention

57.  The relevant provisions governing detention are described in the judgment of Pyatkov v. Russia (no. 61767/08, §§ 48-66, 13 November 2012).

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”)

58.  The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:

“Health care

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.  3^rd General Report of the European Committee for the Prevention of Torture (“the CPT Report”)

59.  The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3^rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The following are extracts from the report:

“33.  When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.

It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.

34.  While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...

35.  A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.

As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.

Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.

36.  The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital ...

38.  A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.

There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). ...

39.  A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.

Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.

40.  The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service. ...”

С.  Guidelines issued by the World Health Organization

60.  According to the guidelines on “Antiretroviral therapy for HIV infection in adults and adolescents” issued by the World Health Organization (WHO) within the HIV/AIDS programme, following revision in 2006, routine monitoring of CD4 cell counts was recommended every six months, or more frequently if clinically indicated (§ 15.4).

61.  Following revision in 2010, the guidelines recommended that all patients should have access to CD4 cell-count testing to optimise pre-antiretroviral therapy care and management of their antiretroviral therapy. Regular immunological testing was recommended for all patients receiving antiretroviral therapy (§ 20.1), and virological and immunological criteria were to be used to confirm treatment failure (§ 16.1). In paragraph 21.7 the guidelines addressed the issue of preventing and assessing HIV drug resistance:

“The rapid or uncontrolled emergence of HIV drug resistance could lead to an increase in therapeutic failures, transmission of resistant virus, and a decrease in therapeutic options, treatment programme effectiveness and survival. Implementing programme elements that minimize the emergence of HIV drug resistance, including optimizing access to antiretroviral therapy, supporting appropriate therapy prescribing and adherence, and ensuring adequate and continuous drug supplies, is essential for preserving the efficacy of the limited number of antiretroviral drugs available in many countries.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

62.  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 as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Submissions by the parties

63.  The Government argued that in order to assess whether the authorities had complied with their obligations under Article 3, the quality of the medical care afforded to the applicant needed to be examined against the applicable standards. They further submitted that should any omissions be detected, it was necessary to determine what impact, if any, they had had on the applicant’s health. According to the Government, those questions could only be answered by experts. However, the applicant had not produced any expert reports proving the inadequacy of the medical assistance he had received in detention. The Government stressed that during his detention the applicant had been under medical supervision and that he had received in-patient and out-patient treatment for all the diseases with which he had been diagnosed. The Government therefore concluded that the applicant’s complaint under Article 3 was manifestly ill-founded.

64.  The applicant maintained his claims. He submitted that as a result of the lack of adequate medical care and appropriate diet, his health had severely deteriorated after his arrest. At every court hearing the defence had drawn the authorities’ attention to the deterioration in the applicant’s condition and to the developing concomitant illnesses. The administration had failed to provide the applicant with a special diet. The applicant submitted that he could not afford to obtain an expert report to prove the inadequacy of the medical care provided. He concluded by noting that poor diet and conditions of hygiene had fostered the progression of his diseases.

B.  The Court’s assessment

1.  Admissibility

65.  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.

2.  Merits

(a)  General principles

66.  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).

67.  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).

68.  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 examined whether or not the applicant had 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)).

69.  The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006; Yevgeniy Alekseyenko, cited above, § 100; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; 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).

70.  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

71.  Turning to the circumstances of the present case, the Court observes that on the applicant’s admission to the temporary detention facility in May 2012, the authorities recorded that he was suffering from HIV. According to the documents provided by the applicant, he was also diagnosed with a stomach ulcer in remission. The documents produced by the Government contain no indication that any other concomitant diseases were recorded when the applicant was admitted to the facility.

72.  It appears from the documents submitted by the applicant that immediately after his placement in detention in May 2012 his antiretroviral therapy was interrupted. According to the applicant, it was not until August 2012 that the therapy was restarted. The Government did not refer to that fact in their observations, and the information in the applicant’s medical file provided by them is not sufficient to refute the applicant’s allegations, as it contains no entries between 16 May 2012 and 26 June 2012. In these circumstances, the evidence adduced by the applicant enables the Court to conclude that the authorities failed to ensure the continuity of his antiretroviral treatment.

73.  The Court reiterates that ensuring continuity of care between the community and prison, as well as within the prison system, is a fundamental component of successful treatment. Supporting adherence to treatment is essential for preserving the efficacy of antiretroviral therapy, as pointed out in the guidelines of the World Health Organisation in force at the relevant time (see paragraph 61 above). Hence, the authorities’ omission to make sure that the applicant received the medication that had been prescribed to him before his arrest was critical for the latter’s state of health.

74.  The Court observes that when the applicant was admitted to the prison hospital in July 2013, he was diagnosed with a wide range of illnesses. None of those diseases had been recorded at the time of his arrest. Furthermore, during the subsequent period of his detention the applicant was admitted to the hospital no less than five times and spent a total of five months there, each admission having been prompted by a further deterioration in his health and increasing complaints of new health problems. The Court notes that according to the World Health Organisation a problem of adherence to a drug regimen can limit the effectiveness of antiretroviral therapy and lead to resistance of the human immunodeficiency virus. Episodic antiretroviral therapy significantly increases the risk of opportunistic diseases or even death, as well as the development of HIV drug resistance in patients (see paragraph 61 above). The Court observes that the interruption of the applicant’s therapy and the deterioration in his condition occurred during the same period of time, which, in view of the guidelines of the World Health Organisation, might indicate that the development of opportunistic infections during the first two months of the applicant’s detention was linked to the discontinuation of the antiretroviral treatment and could have negated the positive effects of any further antiretroviral therapy.

75.  The Court further notes that the applicant’s medical record contained a number of entries showing that between July 2012 and December 2013 he received antiretroviral drugs, namely Reyataz and Combivir. Despite the fact that he developed opportunistic infections, the effectiveness of the therapy was never questioned. Moreover, although on 20 September 2012 the medical staff of the AIDS Centre expressly recommended immunological testing, no CD4 cell-count test was performed. The copy of the applicant’s medical file provided by the Government contains only one reference to the results of an immunological test, but it is unclear when the test was conducted. In this respect, the Court reiterates that the guidelines of the World Health Organisation in force at the relevant time insisted on regular immunological testing for all patients receiving antiretroviral therapy. They also indicated that virological and immunological criteria should only be used to confirm the effectiveness of the treatment. In those circumstances, the Court cannot but find that the authorities failed to effectively monitor and, if necessary, correct the applicant’s drug regimen. The issue of an alternative regimen was never discussed, despite the growing number of the applicant’s non-communicable illnesses. There is no evidence in the file that the authorities examined the new health complaints from the perspective of the possible toxic effect of the HIV drugs or the applicant developing resistance to them. It appears that the medical assistance afforded to the applicant in detention took the form of a “sick call” model, with the authorities merely taking steps to address, to an extent, his increasing health problems resulting from his poorly monitored HIV condition and the questionable effectiveness of the antiretroviral therapy, without taking any proactive measures to ensure early disease detection, treatment and disease prevention (see, a contrario, Fedoseievs v. Latvia, (dec.), no. 37546/06, § 50, 19 November 2013). Moreover, the Court is not convinced that the screening, monitoring and managing of the applicant’s non-communicable illnesses was properly carried out through primary care.

76.  Lastly, the evidence before the Court shows that the applicant needed a special diet in order to improve his health. However, it accepts the applicant’s argument, which was not contested by the Government, that the prison authorities did not fully implement the doctors’ recommendation that he needed a special diet in order to maintain his health (see Gorodnitchev v. Russia, no. 52058/99, § 91, 24 May 2007).

77.  To sum up, the Court considers that the Government did not provide sufficient evidence to enable it to conclude that the applicant received comprehensive, effective and transparent medical assistance for his HIV infection during detention. The authorities’ failure to provide the applicant with the requisite medical care amounted to inhuman and degrading treatment with the meaning of Article 3 of the Convention.

78.  Accordingly, there has been a violation of Article 3 of the Convention on account of the authorities’ failure to comply with their responsibility to ensure that the applicant received adequate medical assistance during his detention.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

79.  The applicant complained of a violation of his right to trial within a reasonable time and alleged that the orders for his detention had not been founded on sufficient reasons. He relied on Article 5 § 3 of the Convention, which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A.  Admissibility

80.  The Government submitted that given the date of the introduction of the application and in view of the admissibility criteria set out in Article 35 of the Convention, the Court could only take into account the period of the applicant’s detention before 7 December 2012.

81.  The applicant insisted that his complaint was to be examined in relation to the entire period of his pre-trial detention.

82.  The Court reiterates that following his arrest on 9 May 2012 the applicant remained in pre-trial detention until his conviction on 6 August 2013. Irrespective of the fact, that the applicant only brought his application to the Court on 2 December 2012, it will examine the entire period of his pre-trial detention, which lasted for slightly less than fifteen months. The Court notes that the applicant complained not of an isolated act but rather of a situation in which he had been for some time and which was to last until it ends. It would be excessively formalistic to demand that an applicant denouncing such a situation should file a new application after each final decision rejecting a request for release or, as the case may be, after each further order extending his detention. The Court finds, moreover, that it should hold itself competent to examine facts which occurred during the proceedings and constitute a mere extension or the facts complained of at the outset (see Novokreshchin v. Russia, no. 40573/08, § 16, 27 November 2014; Stögmüller v. Austria, 10 November 1969, § 7, Series A no. 9, and Neumeister v. Austria, 27 June 1968, § 7, Series A no. 8).

83.  The Court thus concludes 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.

B.  Merits

1.  Submissions by the parties

84.  The Government submitted that the applicant’s detention had been based on “relevant” and “sufficient” grounds. He had been charged with a particularly grave offence punishable by up to fifteen years’ imprisonment, his neighbours had portrayed him in a negative light, he had been previously convicted, and he had had no job, regular income or dependents. In those circumstances, the Russian courts had had grounds to believe that he had been likely to abscond or interfere with the investigation. Those circumstances had not changed throughout the applicant’s detention.

85.  The Government also argued that in applying to the court for extensions of the applicant’s detention, the investigators had indicated which investigatory activities had already been conducted and which were yet to be performed. On several occasions, the applicant had been admitted to hospital, so his presence during investigatory activities and at court hearings had been impossible. The applicant’s argument that his state of health had been incompatible with detention had been thoroughly examined by the courts, which had found it manifestly ill-founded.

86.  The applicant maintained his claims. He argued that he had not had any intention of absconding, since he had had a stable residence and a job, and no criminal record. According to him, the court’s findings as to the risks of his absconding and influencing witnesses had not been supported by any evidence. He stressed that in extending his detention, the courts had used stereotyped formulae and had relied mainly on the gravity of the charges. They had failed to assess whether other preventive measures could have been sufficient to eliminate the alleged risks of absconding and interference with the investigation.

87.  As to the celerity of the investigation, the applicant accepted that he had been in hospital for lengthy periods of time. However, most of the investigatory activities had not required his presence. Moreover, it had taken the investigators an unreasonably long time to obtain expert reports.

88.  According to the applicant, the courts failed to assess whether the length of his pre-trial detention had been reasonable. He concluded by noting that his detention had not been based on relevant and sufficient grounds.

2.  The Court’s assessment

(a)  General principles

89.  The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of his or her continued detention, whatever other grounds may exist. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings.   The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his or her continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I).

90.  It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV).

(b)  Application to the present case

91.  The Court reiterates that the entire period of the applicant’s pre-trial detention lasted approximately fifteen months,

92.  The Court considers that the applicant’s detention was initially warranted by a reasonable suspicion of his having committed a murder, supported, as follows from the documents, by his own decision to surrender to the police and confess to the crime. The domestic courts consistently relied on the gravity of the charge as the main factor for the assessment of the applicant’s potential to abscond, reoffend or obstruct the course of justice. The Court cannot overlook the fact that the applicant was charged with a particularly serious criminal offence, murder, which requires a strong response on the part of the authorities, including for the purpose of addressing public reaction usually generated by such offences and thus, in such cases, capable of justifying pre-trial detention, at least for a time (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 51). The Court is also mindful of the authorities’ delicate task of balancing rights of an accused, including his right to liberty and presumption of innocence, against the need to maintain public order and security of the society.  At the same time, the Court adheres to its position, expressed in a long list of cases, including those against Russia, that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier, cited above, § 51; see also Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001; and Pichugin v. Russia, no. 38623/03, § 135, 23 October 2012).

93.  The Court reiterates the Government’s argument, disputed by the applicant, that the latter’s criminal record served as yet another ground for his continuous detention. In this respect, the relevance of detainees’ prior convictions is undeniably a factor to take into account when deciding to depart from the rule of respect for individual liberty, although reference to a person’s prior record cannot, on its own, suffice to justify refusal of release (see, among other authorities, Sergey Vasilyev v. Russia, no. 33023/07, § 84, 17 October 2013, with further references). However, the Court observes that the factor of the criminal record is particularly doubtful in the present case. In particular, the only detention decision citing the applicant’s criminal record was issued upon the authorisation of his remand in custody on 11 May 2012 (see paragraph 6 above). The following detention order was no longer as precise and merely referred to the applicant having been “the subject of criminal prosecution” (see paragraph 8 above). However, what is more important is that no subsequent detention orders referred to the existence of the criminal record or cited any criminal background on the applicant’s part (see paragraphs 9-11 above). To the contrary, both the prosecution authorities in the indictment bill, and the trial court in its judgment noted the lack of the criminal record (see paragraphs 12 and 13 above). The trial court even went as far as to use this circumstance to mitigate the applicant’s criminal liability and reduce his sentence (see paragraph 13 above). The Court, however, does not consider it necessary to rule on the cause of the mentioned discrepancies between the very first detention orders and the remaining procedural documents in the applicant’s case. It merely considers established that at least after 2 August 2012 the applicant’s previous encounters with the criminal law, if any existed, had no bearing on the matter of his deprivation of liberty. In such circumstances, the Court cannot accept that there was a reasonable ground to fear that the applicant would commit new offences, if released (see Sergey Vasilyev, cited above, § 85).

94.  The final grounds indicated by the domestic courts while extending the applicant’s detention stemmed from poor references given to him, as the Government indicated, by his neighbours, as well as from the applicant’s precarious employment and family situation, cited by the Russian courts in support of their fear that the applicant will abscond.

95.  While the Court considers opinions and references important to understand different facets of the applicant’s personality, his values, attitudes, traits of behaviour and the risk flowing therefrom, including those to the interests of justice, it can hardly agree that bad references, on their own, can outweigh the crucial right to liberty and justify detention, particularly so when such opinions were only expressed in writing and were never challenged through a confrontation in open court. Moreover, it is important to remember a particularly volatile nature of a personal opinion, as was also demonstrated in the present case, when the positive characteristics provided to the applicant served as yet another mitigating circumstance in his conviction (see paragraph 13 above).

96.  The Court further notes that the domestic authorities considered that the applicant might abscond due to his lack of the “official” source of income and his having had no dependents. It might accept the grounds cited by the authorities as relevant. However, it cannot find them decisive given that the judicial decisions authorising the applicant’s continued detention remained silent as to why such risk of absconding could not have been offset by any other means of ensuring his appearance at trial (see Sergey Vasilyev, cited above, § 85).

97.  The Court reiterates that when deciding whether a person should be released or detained the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at trial. This Convention provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see Sulaoja v. Estonia, no. 55939/00, § 64 in fine, 15 February 2005, and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). The Court notes that, while accepting the investigators’ allegations that the applicant was likely to avoid or pervert the course of justice, the courts gave no heed to important and relevant facts supporting the applicant’s pleas for liberty and reducing the risk that he would abscond or collude. Among those, the Court can identify, in particular, the progress of his HIV infection and the rapid deterioration of his health. In these circumstances, the Court cannot but conclude that the domestic courts failed to assess the applicant’s personal situation and to give specific reasons, supported by evidentiary findings, for holding him in custody during the period under examination.

98.  To sum up, the Court considers that by failing to address specific facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” for the entire period of detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

99.  There has accordingly been a violation of Article 5 § 3 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

100.  The applicant lastly claimed that he had not had at his disposal an effective remedy to complain of a lack of adequate medical assistance, as required under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”

A.  Submissions by the parties

101.  The Government argued that the applicant had had a right to complain of a lack of medical care in detention to the administration of the detention facility, to the prosecutor’s office or to the courts. The administration had not hindered the applicant’s right to complain to the authorities. However, during the period of his detention the applicant had not raised the issue before the administration of the facility or before other authorities, including the courts. Accordingly, his allegation of a lack of effective avenues to complain of inadequate medical care in detention was unsubstantiated.

102.  The applicant maintained his claims.

B.  The Court’s assessment

1.  Admissibility

103.  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.

2.  Merits

104.  The Court reiterates that Article 13 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).

105.  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).

106.  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).

107.  Turning to the facts of the present case, the Court notes the Government’s argument that the applicant did not attempt to make use of any avenues for exhausting remedies. However, it is not convinced by those submissions. The documents produced by the applicant show that his lawyer had on numerous occasions drawn the attention of the investigators, of the facility administration and of the courts to the applicant’s state of health.

108.  However, the Court’s task in the present case is to examine the effectiveness of 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. The Court has on many occasions examined the effectiveness of the domestic remedies suggested by the Government in cases of applicants complaining of ongoing inadequate medical treatment, such as in the present case. It found, in particular, that in deciding on a complaint concerning breaches of domestic regulations governing the provision of medical care to detainees, the prison authorities would not have a sufficiently independent standpoint to satisfy the requirements of Article 35 of the Convention (see Dirdizov v. Russia, no. 41461/10, § 75, 27 November 2012 and Koryak v. Russia, no. 24677/10, § 79, 13 November 2012). The Court 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, cited above, §§ 80-81). 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 other redress 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 level of medical treatment (see A.B. v. Russia, no. 1439/06, § 96, 14 October 2010).

109.  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.

110.  To sum up, the Court finds that the applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

111.  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

112.  The applicant claimed 500,000 Russian roubles (RUB, approximately 7,000 euros (EUR)) in respect of non-pecuniary damage.

113.  The Government submitted that the Court’s judgment would in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant, given that the entire period of his detention had been deducted from his prison term under the judgment of 6 August 2013 and that his complaint under Article 3 of the Convention was manifestly ill-founded.

114.  The Court, making its assessment on an equitable basis, decides that the sum claimed by the applicant must be paid in full, plus any tax that may be chargeable.

B.  Costs and expenses

115.  The applicant also claimed RUB 20,000 (approximately EUR 280) for the costs and expenses incurred before the domestic courts and RUB 111,000 (approximately EUR 1,600) for those incurred before the Court.

116.  The Government submitted that the applicant’s complaints to the Russian courts had no relevance to his complaints to the Court. As to the expenses incurred before the Court, the Government noted that the applicant’s claims were not based on a contract or any other official document setting out the hourly fee charged by the applicant’s representative. Taking into account the limited scope and relative simplicity of the issues raised by the application, the Government doubted that the case had required thorough research on the part of the applicant’s lawyer.

117.  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 were reasonable as to quantum. The Court notes, firstly, that the applicant was granted legal aid for his representation before the Court. The Court considers that the sum afforded in legal aid for his representation before the Court is sufficient to cover his expenses under this head. As to the remaining claims in respect of legal representation, having regard to the documents in its possession and the above criteria, the Court considers that the legal services provided to the applicant, for which the above-mentioned expenses were incurred, were directly related to the protection of the applicant’s rights guaranteed by Article 3 and Article 5 § 3 of the Convention. The Court therefore considers it reasonable to award the sum claimed in full in respect of the costs and expenses incurred before the Russian courts, together with any tax that may be chargeable.

C.  Default interest

118.  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.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 3 of the Convention;

 

3.  Holds that there has been a violation of Article 5 § 3 of the Convention;

 

4.  Holds that there has been a violation of Article 13 of the Convention;

 

5.  Holds

(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 amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:

(i)  EUR 7,000 (seven thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable;

(ii)  EUR 280 (two hundred and eighty euros), in respect of costs and expenses incurred before the domestic courts, plus any tax that may be chargeable to the applicant;

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

 

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

Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                 Luis López Guerra
       Registrar                                                                              President




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[1] The Russian classification of the HIV-related disease is different from that employed by the World Health Organisation. Stages 4 and 5 in the Russian classification correspond to stages 3 and 4 in the WHO classification, respectively.