THIRD SECTION

CASE OF BARSUKOV v. RUSSIA

(Application no. 51252/09)

JUDGMENT

STRASBOURG

6 June 2017

This judgment is final but it may be subject to editorial revision.
In the case of Barsukov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 51252/09) 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 Sergeyevich Barsukov (“the applicant”), on 2 September 2009.
2.  The applicant was represented by Mr K. Kuzminykh, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the Court.
3.  The applicant alleged, in particular, that he did not receive adequate medical treatment in detention and that he had had no effective domestic remedy whereby to complain about the poor quality of his medical treatment whilst in detention.
4.  On 19 February 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5.  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
6.  The applicant was born in 1956 in the Tambov Region. Before his arrest he lived in St Petersburg.
Section 1.01	A.  The applicant’s arrest and detention
7.  The applicant was arrested on 23 August 2007. He remained in detention throughout the investigation and trial.
8.  On 9 November 2009 the Kuybyshevskiy District Court of St Petersburg found him guilty of aggravated fraud and money laundering committed within an organised criminal group and sentenced him to fourteen years’ imprisonment. That judgment was upheld on appeal by the St Petersburg City Court on 30 March 2010.
9.  On 6 March 2012, in another set of criminal proceedings, the Kuybyshevskiy District Court, found the applicant guilty of two counts of aggravated extortion committed within an organised criminal group and imposed a cumulative prison sentence of fifteen years. The judgment became final on 12 July 2012 when endorsed by the City Court.
Section 1.02	B.  The applicant’s state of health and medical treatment
10.  In 1994 the applicant lost his right arm. He suffered heart attacks in 2000 and 2007 and a kidney affected by cancer was removed in 2003. At the time of his arrest the applicant’s diagnoses listed: ischemic disease, exertional angina of the second functional group, atherosclerotic and post infarction cardiosclerosis, third-stage hypertension with a high risk of vascular complications; cardiac failure of the second functional group; chronic post-traumatic pericarditis with effusion; remote cancer metastases requiring permanent supervision; kidney stones; concretion of the right kidney; chronic pyelonephritis; chronic kidney failure of the first degree; adenocarcinoma of the prostate gland; chronic prostatitis; chronic cystitis, and constantly recurrent multidrug-resistant infection of the urinary tract. To keep his medical condition under control, the applicant followed a daily complex drug regimen comprising up to ten medicaments and underwent an in-depth medical examination every two months in a hospital where he received necessary treatment in respect of his oncological illnesses.
11.  On 24 August 2007 upon his admission to remand prison no. IZ‑77/1 in Moscow the applicant informed the prison medical authorities of his condition, submitting the full list of his diagnoses.
12.  In September 2007 he started complaining about a number of symptoms such as a heart pain, fatigue, difficulty in breathing, and frequent urination. He received basic treatment which alleviated a part of his health problems, but the urinary condition worsened. In November 2007 he complained of a pain in the low abdomen and inability to urinate. On 20 November 2007 a surgeon recommended urinary catheterisation, that is to say the insertion of a tube into the patient’s bladder via the urethra. That procedure was performed approximately 250 times during the first year of detention. In the meantime the urinary condition became more acute.
13.  On 4 December 2008 the applicant was examined by a urologist for the first time whilst in detention. The doctor recommended treatment with antibiotics, regular urological supervision and to avoid catheterisation in so far as possible.
14.  Throughout 2009 the applicant’s urinary condition persisted. He urinated up to thirty-seven times per day and his nocturnal sleep was interrupted every hour or two. He had to continue resorting to urinary cauterisation. On several occasions he had a consultation with a urologist.
15.  On 12 October 2009, at the request of the applicant’s lawyer, three medical experts prepared a report assessing the capability of the custodial authorities to properly treat the applicant. Having examined the medical file on the applicant compiled in the civilian hospital, submissions by the custodial authorities and the applicant’s own comments, the experts concluded that he required systematic treatment with amendments to the chemotherapy regimen and periodic admissions to a specialised cardiology hospital for instrumental examinations and necessary amendments to drug regimen. Given the absence of proper medical supervision, the experts also warned of a possible deterioration of the applicant’s urinary and oncological problems and a risk of those illnesses advancing to a stage requiring surgery, or to a stage with no prospects of the applicant being cured or even his life being saved. The experts observed that the medical unit of the detention facility where the applicant was kept was not equipped for treating patients in such a medical condition.
16.  On 28 December 2009, 19 March, 15 June, 26 July, 25 August and 30 November 2010 the applicant was examined in the Moscow Scientific Institute of Urology (hereinafter “the Urology Institute”), having been diagnosed with neurogenic bladder dysfunction. The treatment provided slightly improved his condition.
17.  On 21 December 2010 the doctors from the Urology Institute performed a surgery on the applicant. A suprapubic catheter was inserted into his bladder through a cut in the abdomen. The applicant was discharged from the hospital to a remand prison under the supervision of the resident doctor.
18.  Three days later the applicant complained of continuous bleeding from the abdominal incision. The next day, having lost more than one litre of blood, he was sent back to the Institute, where his condition was brought under control.
19.  In April 2011, in the remand prison, the applicant developed an acute inflammation of the urethra, which was successfully treated in the Institute.
20.  From 2012 to 2014 the applicant’s urinary condition remained stable. He continued using the suprapubic catheter to remove the urine.
Section 1.03	C.  Court proceedings
21.  In the meantime, in December 2009 the applicant brought a court claim against the detention authorities, seeking that the lack of appropriate medical treatment be declared unlawful.
22.  On 28 June 2010 the Preobrazhenskiy District Court of Moscow dismissed his claim. The court found as follows:
“From the [applicant’s] medical file submitted by the [remand prison] it is apparent that ... [the authorities] provided him with medical aid, subjected him to medical testing, and prescribed treatment. In particular, on 4 December 2008, 25 September and 15 November 2009 he was seen by a urologist... On 28 December 2009 he was examined in the [Urology Institute]. It is not apparent from the medical file that the authorities refused to provide [the applicant] with the medical assistance or that he was deprived of the requisite medication”.
23.  On 24 March 2011 the Moscow City Court upheld that decision on appeal.
Article II.	II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW
24.  The relevant general provisions of domestic and international law governing the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015).
25.  The provisions of the domestic law establishing 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); 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
26.  The applicant complained that the authorities had failed to provide him with adequate medical assistance. He relied on Article 3 of the Convention, which 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
27.  The Government argued that, as had been confirmed by the domestic courts, the applicant had been provided with adequate medical care. They stated that he had been under the supervision of various doctors, that he had regularly undergone necessary medical tests and had received the requisite medical treatment in full.
28.  The applicant maintained his claim. He submitted a medical report prepared on 26 October 2015 by the urologist who had been treating him for several years before his arrest. The report was based on the entire medical file submitted by the Government. The urologist concluded that the medical aid in detention had been deficient. Firstly he noted that, although the applicant’s urinary condition had been worsening from the first weeks of his detention, it was not until December 2008 that a urologist examined him for the first time. That examination, however, had not been thorough, as no endoscopy of the urinary bladder was performed. The treatment prescribed had been inadequate. Secondly, the doctor noted that the urinary inflammation developed by the applicant showed up shortcomings in the medical care, such as delays in changing the catheter. Lastly, the doctor also noted the lack of adequate post-operative care in December 2010 and the applicant’s belated admission to the Urology Institute, which followed a massive blood loss.
Section 3.02	B.  The Court’s assessment
(a)	1.  Admissibility
29.  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.
(b)	2.  Merits
(i)	(a)  General principles
30.  The applicable general principles are set out in the cases of Blokhin v. Russia [GC] (no. 47152/06, §§ 135-40, ECHR 2016); Wenner v. Germany (no. 62303/13, §§ 54-58, 1 September 2016); and Ivko (cited above, §§ 91‑95).
(ii)	(b)  Application of the above principles to the present case
31.  Turning to the circumstances of the present case, the Court observes that the applicant’s main contention was that he did not receive adequate medical treatment in respect of his urinary condition. The Government disagreed. Referring to the findings of the domestic courts, they insisted that the applicant had received proper medical assistance in detention.
32.  The Court notes that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether an applicant in fact required a particular treatment or whether the choice of treatment methods appropriately reflected the applicant’s needs (see Wenner, cited above § 58, Ukhan v. Ukraine, no. 30628/02, § 76, 18 December 2008; and Sergey Antonov, no. 40512/13, § 86, 22 October 2015). Being mindful of the vulnerability of applicants in detention, it is for the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention (see Sergey Antonov, ibid.).
33.  The Court cannot subscribe to the conclusions of the domestic courts as regards the quality of the applicant’s medical treatment, as their examination appears to have been limited in scope and rather formalistic. Essentially it was focused on one issue: whether or not there had been any refusals on the part of the authorities to provide the applicant with the prescribed treatment. The relevance of the doctors’ decisions and the promptness thereof were not assessed. No expert opinions on the issue were taken into consideration.
34.  The Court also notes that the events of December 2010 surrounding the applicant’s profuse post-operative bleeding were not looked at by the domestic courts, as they occurred after the decision in the case had been delivered.
35.  Given these circumstances, the Court gives credence to the evidence from medical professionals submitted by the applicant, including the expert report of 12 October 2009 and the medical opinion of 26 October 2015. They contain a thorough in-depth analysis of the medical assistance rendered in detention and cover the entire period under examination. The medical professionals unanimously concluded that the patient’s urinary problem had not been adequately addressed by the authorities. The Government failed to refute the experts’ statements or even offer any meaningful comments on them.
36.  In the light of the particular seriousness of the applicant’s medical condition, the Court considers that the failure to subject him to an examination by a urologist between August 2007 and December 2008, and the inadequate post-operative care in December 2010 exposed him to prolonged mental and physical suffering that diminished his human dignity. The authorities’ failure to provide him with the medical care he needed amounted to inhuman and degrading treatment for the purposes of Article 3 of the Convention.
37.  Accordingly, there has been a violation of Article 3 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
38.  The applicant claimed that he had not had at his disposal an effective remedy whereby to complain about the 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 notwithstanding that the violation has been committed by persons acting in an official capacity.”
Section 4.01	A.  Submissions by the parties
39.  The Government submitted that the applicant had had effective domestic remedies and that he had made use of them by raising his grievances before the national courts.
40.  The applicant maintained his complaint.
Section 4.02	B.  The Court’s assessment
(a)	1.  Admissibility
41.  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.
(b)	2.  Merits
(i)	(a)  General principles
42.  For a summary of the relevant general principles see Litvinov v. Russia, no. 32863/13, §§ 73-77, 22 March 2016.
(ii)	(b)  Application of the above principles to the present case
43.  The Court has on many occasions found there to be a lack of effective domestic remedies in Russia through which to complain about the poor quality of medical treatment in detention (see, among many other authorities, Urazov v. Russia, no. 42147/05, §§ 66-70, 14 June 2016; Makshakov v. Russia, no. 52526/07, §§ 86-89, 24 May 2016; Litvinov, cited above, §§ 78-81; Navalnyy and Yashin v. Russia, no. 76204/11, § 106, 4 December 2014; Gorbulya v. Russia, no. 31535/09, §§ 56-58, 6 March 2014; Reshetnyak v. Russia, no. 56027/10, §§ 65-73, 8 January 2013; and Koryak v. Russia, no. 24677/10, §§ 86-93, 13 November 2012). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government, including a complaint to a court, constituted an effective remedy by means of which to prevent the alleged violations or halt their continuance, or to provide the applicant with adequate and sufficient redress for his or her complaints under Article 3 of the Convention.
44.  In the absence of any new arguments from the Government as regards the existence of effective remedies satisfying the requirements of Article 13 of the Convention in the present case, the Court cannot depart from its well-established case-law on the issue. It sees no legal avenues that would constitute an effective remedy for the applicant’s complaints under Article 3 of the Convention. Accordingly, the Court finds that the applicant did not have at his disposal an effective domestic remedy, in breach of Article 13 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
45.  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 5.01	A.  Damage
46.  The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.
47.  The Government insisted that the applicant’s rights had not been violated and submitted that, in any event, the claim was excessive.
48.  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 5.02	B.  Costs and expenses
49.  The applicant also claimed EUR 15,000 for the costs and expenses incurred before the domestic courts and the Court.
50.  The Government argued that the claim was unsubstantiated.
51.  Taking into account the absence of any supporting documents, the Court rejects the claim in full.
Section 5.03	C.  Default interest
52.  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 complaints concerning the inadequacy of the medical treatment in detention and lack of an effective remedy to complain about it admissible;

2.  Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical assistance in detention;

3.  Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy to complain about the lack of adequate medical assistance in detention;

4.  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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President