THIRD SECTION

CASE OF NIZOV v. RUSSIA

(Application no. 66823/12)

JUDGMENT

STRASBOURG

2 May 2017

This judgment is final but it may be subject to editorial revision.

In the case of Nizov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helen Keller, President,
	Pere Pastor Vilanova,
	Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 30 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 66823/12) 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 Vladimir Viktorovich Nizov (“the applicant”), on 12 September 2012.
2.  The applicant, who had been granted legal aid, was represented by Ms A. Boychenyuk, a lawyer practising in Paris. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  On 12 June 2014 the complaint concerning the authorities’ failure to provide the applicant with adequate treatment, in particular a prosthetic leg, was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1969 and lives in the town of Lyskovo, Nizhniy Novgorod Region.
Section 1.01	A.  The applicant’s state of health before his arrest
6.  In 2004, after having been injected with a toxic drug, the applicant developed an arterial embolism and had to have his left leg amputated at thigh level. Four years later he was certified as having a second-degree disability. A special medical board decided that he would be provided with a prosthetic leg. On 2 February 2009 during a routine disability-related examination, he was also prescribed a cane.
7.  By 2010 the applicant had developed deep-vein thrombosis and post‑phlebitic syndrome of the right leg, a long-term complication of his main condition.
Section 1.02	B.  The applicant’s arrest and medical treatment in detention
8.  On 26 November 2010 the police arrested the applicant on suspicion of drug trafficking.
9.  According to the applicant, the police took away his prosthetic leg and gave him crutches in order to increase his suffering and to force him to cooperate. The removal of the prosthesis was not noted in the police records.
10.  On the same day the Lyskovo District Court of the Nizhniy Novgorod Region remanded the applicant in custody. He remained in detention throughout the investigation and trial.
11.  On 10 December 2010 the applicant was transferred from a remand prison to a civilian hospital in Lyskovo on account of acute deep-vein thrombophlebitis. According to him, that condition had developed as a result of the removal of his prosthetic leg, which had caused him to place increased weight on his right leg. After successful surgery the applicant was discharged from the hospital on 30 December 2010.
12.  On 13 January 2011 the applicant was examined by an orthopaedic medical board, which established that he needed a prosthesis, crutches, a cane and some other orthopaedic devices.
13.  By the summer of 2011 a model of a prosthetic leg had been developed for the applicant, but he was unable to use it without the “prosthesis-orthopaedic assistance” needed to adjust it.
14.  In June 2011 the applicant applied for an examination by a special medical board with a view to determining whether his medical condition warranted early release. On 8 June 2011 the detention authorities wrote to him refusing to arrange the examination.
15.  On 23 June 2011 the Lyskovo District Court convicted the applicant of drug trafficking and sentenced him to imprisonment. Three months later the Nizhniy Novgorod Regional Court quashed the conviction and ordered a retrial.
16.  On 28 December 2011, while hearing the applicant’s criminal case anew, the District Court asked officials whether “prosthesis-orthopaedic assistance” was accessible to him in detention.
17.  In a letter dated 13 January 2012 the Nizhniy Novgorod State orthopedic service, which performs individual adjustment of prostheses, informed the court that such assistance could not be provided in a remand prison given the lack of special equipment there.
18.  Ten days later an NGO, the Committee for Civil Rights, complained to the Lyskovo prosecutor of the poor quality of the applicant’s medical treatment and the authorities’ failure to give him a prosthetic leg. According to the applicant, no reply was received.
19.  On 28 April 2012 the District Court found the applicant guilty of drug trafficking and sentenced him to five years and six months’ imprisonment. The sentence was upheld on appeal by the Regional Court and became final on 11 September 2012.
20.  Following his conviction the applicant again asked to be given a prosthetic leg. On 8 October 2012 he received a letter from the Federal Service for the Execution of Sentences in the Nizhniy Novgorod Region, informing him that on 2 February 2009 a medical board had only prescribed him a cane. The applicant was invited to apply for a special medical examination to determine whether he needed a transtibial prosthesis. According to the applicant, he promptly lodged an application as advised.
21.  In November 2012 the applicant was admitted to a prison hospital in Nizhniy Novgorod on account of an acute infectious inflammation of the leg and venal problems.
22.  On 3 December 2012, during his stay in the hospital, the following entry was made in the applicant’s medical file:
“Prosthetics refusal record
We, the undersigned, have made the present record to state that [the applicant] has refused prosthetics of the left limb.”
(The document was signed by the deputy head and two surgeons of the prison hospital.)
23.  Ten days later the applicant was discharged from the hospital.
24.  At some point the prison authorities requested the applicant’s admission to the prison hospital in order to provide him with a prosthetic leg. On 20 May 2013 the applicant was taken to the hospital. Four days later he formally asked the head of the hospital for a prosthetic leg. The hospital discharge summary of 13 June 2013 states that the prosthesis was ordered and that the applicant would be informed about its production in due course.
25.  On 10 December 2013 the applicant was transported to the premises of the Nizhniy Novgorod State orthopedic service, where he was given the prosthetic leg and afforded the necessary prosthesis-orthopaedic assistance.
26.  The applicant was released from detention in November 2014.
Article II.	II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW
27.  The relevant provisions of domestic and international law on the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015).
28.  Government decree no. 240 of 7 April 2008 set out rules on the provision of prostheses and orthopedic devices to disabled persons. Section 16 dealt with the financing of prosthetic and orthopedic work, and provided that the general population would be treated differently from convicted inmates. In particular, prosthetic and orthopedic work and devices for the general population were to be paid for by the Russian Social Insurance Fund and for convicted inmates by the relevant penal facility.
29.  The provisions of domestic law establishing the legal avenues for complaints about the quality of medical services are cited in the following judgments: Patranin v. Russia (no. 12983/14, §§ 86-88, 23 July 2015); Reshetnyak v. Russia (no. 56027/10, §§ 35-46, 8 January 2013); Dirdizov v. Russia (no. 41461/10, §§ 47-61, 27 November 2012); and Koryak v. Russia (no. 24677/10, §§ 46-57, 13 November 2012).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
30.  The applicant complained that he had not been afforded adequate medical treatment, in breach of Article 3 of the Convention, as he had not been provided with a prosthetic leg in a timely manner. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 3.01	A.  Submissions by the parties
31.  The Government put forward two lines of argument.
32.  Firstly, they argued that the claim should be rejected because the applicant had not exhausted domestic remedies. They insisted that the proper formal judicial avenues applicable to the applicant’s situation were a tort action or a complaint under Chapter 25 of the Code of Civil Procedure.
33.  Secondly, the Government argued that the prison authorities had been unable to provide the applicant with a prosthetic leg before his conviction, as their funds could only be spent on prosthetic devices for convicts. Following the applicant’s conviction, the custodial authorities offered him a prosthesis, but on 3 December 2012 he declined their offer. The applicant received a prosthesis as soon as he changed his mind. According to the Government, there was no evidence that the absence of a prosthetic leg had led to the deterioration in the applicant’s health.
34.  The applicant disagreed. He argued that without a prosthetic leg, he had suffered from pain and had experienced various inconveniences. In the absence of a prosthetic left leg, his right leg had had to bear his entire body weight, which had aggravated his condition. The applicant further stressed that he had never refused a prosthesis. On the contrary, on many occasions he had asked the authorities for one, but the legal avenues he had employed had proved ineffective (see paragraphs 14, 18, and 20 above). He lastly alleged that the medical care he had received had been inadequate.
Section 3.02	B.  The Court’s assessment
(a)	1.  Admissibility
35.  The Court has consistently held that the remedies proposed by the Government, including those they have proposed in the present case, do not satisfy the relevant criteria (see Yunzel v. Russia, no. 60627/09, §§ 44-45, 13 December 2016; Urazov v. Russia, no. 42147/05, §§ 66-70, 14 June 2016; Ivko v. Russia (no. 30575/08, §§ 86-88, 15 December 2015; Khalvash v. Russia, no. 32917/13, §§ 49-52, 15 December 2015; Patranin v. Russia, no. 12983/14, §§ 82-88, 23 July 2015; Koryak v. Russia, no. 24677/10, §§ 82-86, 13 November 2012; and Reshetnyak v. Russia, no. 56027/10, §§ 65-73, 8 January 2013). The Court therefore rejects the Government’s non-exhaustion objection.
36.  The Court further observes that the complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b)	2.  Merits
(i)	(a)  General principles
37.  The applicable general principles were recently summarised in the cases of Blokhin v. Russia [GC] (no. 47152/06, §§ 135-40, ECHR 2016), and Ivko (cited above, §§ 91-95).
(ii)	(b)  Application of the general principles to the present case
38.  Turning to the circumstances of the present case the Court observes that the applicant’s main contention was that for more than three years he had not had a prosthetic leg or orthopedic assistance. The Court has no doubts that the absence of a prosthesis significantly impaired the applicant’s everyday functioning and could have caused serious suffering (compare to Vladimir Vasilyev v. Russia, no. 28370/05, §§ 65-70, 10 January 2012, where a violation of Article 3 of the Convention was found on account of the authorities’ failure to provide the applicant with orthopaedic footwear).
39.  The Court recapitulates the two arguments put forward by the Government to explain the three-year delay in the provision of a prosthesis.
40.  Firstly, without impugning the applicant’s entitlement to a prosthetic leg, the Government stated that the custodial authorities had been unable to provide him with one, as the funds at their disposal could only be used for the benefit of convicted detainees.
41.  The Court is not persuaded by the above argument, because the detention authorities at no point referred to a lack of funds or to a legal provision barring them from providing the applicant with a prosthesis. Moreover, even assuming that the detention authorities had no legal means to pay for the applicant’s prosthesis, it seems that its cost should have then been covered by the Social Insurance Fund (see paragraph 28 above). The Government’s argument is further weakened by the fact, which was not in dispute, that a prosthetic leg had been developed for the applicant in the summer of 2011 (see paragraph 13 above). The latter was unable to use it, however, owing to the authorities’ failure to arrange the “prosthesis‑orthopaedic assistance” needed to adjust it.
42.  Leaving aside the Government’s argument that the distribution of the funds for prosthetic devices depended on the status of a disabled person, no explanation has been provided to the Court for the detention authorities’ failure to provide the applicant with a prosthetic leg after his conviction in April 2012. The only argument put forward by the Government in this connection is based on an entry in the applicant’s medical file (see paragraph 22 above), recording his alleged refusal on 3 December 2012 of a prosthetic leg.
43.  The Court notes that the entry was not signed by the applicant. It considers that the absence of the applicant’s signature under that entry, taken together with his consistent argument that the only time when he had been offered a prosthetic leg, albeit he had been unable to use it, had been in the summer of 2011, cast a serious doubt on the veracity of the entry. That doubt is amplified by the absence of any explanation as to why the patient refused the orthopaedic device, particularly taking into account the number of complaints and requests he had already lodged with the authorities asking for a prosthesis.
44.   In the absence of information about possible adverse effects of the alleged refusal on his health and well-being, the applicant was unable to make such a decision in a meaningful and intelligent fashion. Accordingly, the Court cannot accept the proposed explanation.
45.  In the light of the above, the Court sees no justification for the authorities’ failure to react promptly to the applicant’s situation, of which they were aware. It sees no need to assess whether the absence of a prosthetic leg resulted in the deterioration of the applicant’s health, because the lack of such an important device over a prolonged period of time in itself amounted to degrading treatment in breach of Article 3 of the Convention. In the Court’s view, the applicant has been subjected to distress and hardship exceeding the unavoidable level of suffering inherent in detention.
46.  Accordingly, there has been a violation of Article 3 of the Convention on account of the authorities’ failure to provide the applicant with a prosthetic leg in a timely fashion. In view of the above finding, the Court does not consider it necessary to examine separately the complaint about poor medical assistance, as this complaint is closely linked to his grievance deriving from the lack of a prosthesis.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
47.  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.”
Section 4.01	A.  Damage
(a)	1.  Pecuniary damage
48.  The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage, comprising expenses incurred by him and his relatives to support his health in detention.
49.  The Government submitted that the claim was unsubstantiated.
50.  Taking into account the fact that the applicant did not provide the Court with evidence in support of this claim, the Court is unable to accept it.
(b)	2.  Non-pecuniary damage
51.  The applicant claimed EUR 100,000 in respect of non-pecuniary damage.
52.  The Government submitted that this claim was excessive.
53.  The Court, making its assessment on an equitable basis, awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
Section 4.02	B.  Costs and expenses
54.  Without providing any supporting documents, the applicant claimed EUR 100 in respect of postal and photocopying expenses. He also claimed EUR 3,915 for legal costs incurred before the Court, of which he asked that EUR 625 be paid to Mr E. Markov, a lawyer who had represented him until 24 October 2014, and EUR 3,290 to Ms A. Boychenyuk, his current representative. In support of that claim he submitted contracts with his two representatives. In accordance with their terms, if the Court should grant legal aid or award legal costs and expenses, it would be the Government, not the applicant, who would have to pay for the lawyers’ services.
55.  The Government noted that the applicant had not incurred any legal costs, and that in fact, the legal services had been rendered pro bono.
56.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking into account that the applicant was granted legal aid in the amount of EUR 850 from the Court, and that he has no legal obligation to pay for his legal representation before the Court, the Court dismisses the claim for costs and expenses.
Section 4.03	C.  Default interest
57.  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 complaint concerning the lack of adequate medical treatment and a prosthetic leg for the applicant admissible;

2.  Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to provide the applicant with a prosthetic leg in a timely fashion and finds that there is no need to examine separately the complaint about the lack of proper medical assistance;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), in respect of non‑pecuniary damage, plus any tax that may be chargeable to him, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helen Keller
	Deputy Registrar	President