THIRD SECTION

CASE OF KHUSEYNOV v. RUSSIA

(Application no. 1647/16)

JUDGMENT

STRASBOURG

17 October 2017

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

In the case of Khuseynov 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 26 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 1647/16) 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 Ruslan Eliyevich Khuseynov (“the applicant”), on 25 January 2016.
2.  The applicant, who had been granted legal aid, was represented by Mr V. Shukhardin, a lawyer practising in Moscow. 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 his successor to that post, Mr M. Galperin.
3.  The applicant alleged that he had not received adequate medical care in detention. He also complained that there had been no remedy available to him for that complaint.
4.  On 25 January 2016 the Court, at his request, decided to apply Rules 39 and 41 of the Rules of Court to the present case (see paragraph 22 below).
5.  On 16 June 2016 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1975 in Vladikavkaz, the Republic of North Ossetia‑Alania. He is currently detained in correctional colony no. 1 in Vladikavkaz (“the correctional colony”).
Section 1.01	A.  Conviction
7.  On 21 January 2013 the applicant was arrested on suspicion of drug trafficking and taken to remand prison no. 20/1 in Grozny, the Chechen Republic (“the remand prison”).
8.  On 17 July 2014 the Gudermes Town Court of the Chechen Republic convicted him as charged and sentenced him to thirteen years’ imprisonment.
Section 1.02	B.  The applicant’s medical care in detention
9.  During a medical check-up upon his admission to the remand prison, a doctor noted an area of pigmentation on the applicant’s face and ordered a biopsy. The test, performed on 27 February 2013 at the Regional Cancer Hospital in Grozny, revealed melanoma, a type of skin cancer. Radiotherapy and surgery were prescribed.
10.  Such treatment was considered advanced medical care, which could only be provided under a special programme in limited numbers. On 16 September 2013 a medical panel of the Ministry of Healthcare of the Chechen Republic offered that programme to the applicant.
11.  In October and November 2013 he was transferred to the Regional Cancer Hospital in Rostov (“the cancer hospital”). He was examined and informed that the cancerous tumour could be removed, but he refused the treatment.
12.  On 3 June 2014 the applicant was examined at the Rostov Institute of Cancer Research (“the cancer institute”). Surgical removal of the melanoma was recommended. It appears that several further consultations had been planned to take place at the facility, but the detention authorities failed to ensure his presence.
13.  On 20 June and 5 September 2014 a panel of doctors from the сancer hospital repeatedly recommended surgical removal of the melanoma. The applicant agreed to the treatment, but several days later withdrew his consent, saying that he had no confidence in the doctors practising in the Chechen Republic.
14.  On 22 September 2014 the applicant was admitted to the Town Hospital in Groznyy for cancer surgery, but refused it the next day as he had no confidence in the doctors.
15.  At the end of December 2014 he was moved from the remand prison to the correctional colony, where he had to serve his sentence.
16.  On 2 April 2015 a further biopsy showed that the applicant’s tumour showed a moderate-stage basal cell carcinoma, another type of skin cancer. Given the extent to which the tumour had spread, reconstructive facial surgery was recommended.
17.  Several days later, after realising that the tumour had grown, the applicant gave his written consent to the prescribed surgery.
18.  The detention authorities contacted the cancer hospital with a view to arranging the treatment.
19.  On 6 April 2015 the head of the cancer hospital informed the detention authorities that the medical institution was unable to perform such complex surgery.
Section 1.03	C.  Application for early release on medical grounds
20.  On 27 October 2015 the applicant applied for early release from detention on medical grounds. On 23 November 2015 the Promyshlenniy District Court of Vladikavkaz refused to examine the application on the merits, because his illness was not included in Government Decree no. 54 of 6 February 2004 setting out a list of illnesses warranting early release. Under the Decree, only patients with end-stage cancer could apply for early release on health grounds.
Section 1.04	D.  Rule 39 request and further developments in the case
21.  On 11 January 2016 the applicant lodged a request for interim measures under Rule 39 of the Rules of Court, complaining of his inability to undergo the complex cancer surgery vitally needed in his situation.
22.  On 25 January 2016 the Court indicated to the Russian Government, under Rule 39, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts independent from the penal system with a view to determining: (i) whether he had been receiving adequate medical care; (ii) whether his current state of health was compatible with detention in the correctional colony; and (iii) whether his state of health called for urgent surgery and/or for a transfer to an appropriate civilian or prison hospital. Furthermore, the Government were also asked to ensure the applicant’s transfer to such a relevant hospital for surgery, should the medical experts conclude that urgent surgery in a hospital was required.
23.  On 4 March 2016 the Government responded to a letter from the Court dated 25 January 2016, stating that the applicant’s transfer to a hospital for surgery was scheduled for 10 March 2016. They also submitted the following: a document setting out the periods of the applicant’s detention in custody, a document concerning the conditions of his detention, a report issued by the detention authorities on his current state of health, original and typed copies of his medical file, and copies of correspondence between the medical and detention authorities discussing surgery for the applicant.
24.  Ten days later the applicant was transferred to prison medical unit no. 61 in Rostov-on-Don (“the prison medical unit”) for surgery. In that facility he was examined by a civilian oncologist, who confirmed that facial surgery was required. According to a letter from the head of the medical unit dated 14 April 2016, the facility was unable to carry any surgery out as its surgical unit was undergoing renovation.
25.  Having learned of the inability of the medical unit to provide the applicant with the required treatment, the detention authorities asked the cancer institute to perform the surgery. The request was refused due to a lack of appropriate security measures at the institution. However, the hospital was ready to sign an agreement with the detention authorities and send a surgeon to a prison medical unit to operate on the applicant.
26.  It appears that in response to the steps taken by the detention authorities to ensure surgery for the applicant by a civilian cancer surgeon, on 31 May 2016 he refused the treatment. The following day he was discharged from the medical unit and returned to the correctional colony.
27.  On 6 October 2016 the applicant agreed to the treatment in a cancer hospital. The detention authorities started organising his transfer to a hospital in the Krasnodar Region. The parties have not submitted information about any further developments in the case.
Article II.	II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW
28.  The relevant provisions of Russian and international law on the medical care of detainees are set out in the following judgments: Ivko v. Russia (no. 30575/08, §§ 55-63, 15 December 2015); Amirov v. Russia (no. 51857/13, §§ 50-57, 27 November 2014); Pakhomov v. Russia (no. 44917/08, 30 September 2011); and Yevgeniy Alekseyenko v. Russia (no. 41833/04, 27 January 2011).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
29.  The applicant complained that the authorities had failed to provide him with adequate medical care in detention, in breach of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 3.01	A.  Submissions by the parties
30.  The Government argued that they had offered the applicant the necessary treatment, but he had refused it.
31.  The applicant maintained his complaints. He claimed that he had never refused treatment in the cancer institute. The refusals made in respect of the other facilities, including the prison medical unit, had been legitimate because he had no confidence in the doctors. He pointed out that the cancer surgery, which had been recommended several years ago, had not yet been performed.
Section 3.02	B.  The Court’s assessment
32.  The Court observes that the crux of the applicant’s complaint is the lack of cancer surgery. It is not disputed between the parties that he needed the surgery and refused it on many occasions between 2013 and 2016 (see paragraphs 11, 13, 14, and 26 above). There is no doubt that the refusals of treatment were informed and genuine. The applicant explained that he had no confidence in the doctors, but the Court cannot accept this argument, as it sees no shortcomings on the part of the medical authorities which could justify such a lack of trust in the healthcare providers (see, mutatis mutandis, Vinogradov v. Russia, no. 27122/10, § 35, 7 March 2017; contrast Makshakov v. Russia, no. 52526/07, § 100, 24 May 2016).
33.  The Court notes that consent to treatment is considered a cornerstone of a doctor-patient relationship. The applicant’s capacity to give and withdraw it was never in dispute. Accordingly, his refusals of treatment had to be respected.
34.  The Court is satisfied that despite the frequent changes in the applicant’s conduct, as soon as he agreed to the surgery, the authorities always took steps to ensure it. The material before the Court suggests that the fact that the surgery has not taken place should be attributed to the applicant, rather than to the detention authorities. The Court understands the difficulties which the authorities faced while trying to organise a complex and advanced medical procedure for a patient who, without any plausible explanation, had a frequent change of attitude. It cannot see any significant delays in the authorities’ response to his changing attitude or any resistance on their part to each new request from him. They took steps to organise the surgery, even when it became clear that a civilian institution was unable to accept him for treatment. The Court does not see any reason to conclude that the surgery will not be performed after the applicant finally firmly decides to undergo it.
35.  Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
36.  The applicant claimed that there had been no effective remedy at his disposal for his complaint of a lack of adequate medical care, as required under Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”
Section 4.01	A.  Submissions by the parties
37.  The Government submitted that lodging a complaint with a prosecutor’s office and the prison administration constituted an effective remedy for an applicant to complain about the quality of his or her medical care in detention.
38.  The applicant maintained his complaint.
Section 4.02	B.  The Court’s assessment
39.  The Court has found above that the applicant’s complaint under Article 3 of the Convention is manifestly ill-founded. Accordingly, he had no “arguable claim” under the invoked provision, and Article 13 of the Convention in conjunction with Article 3 is inapplicable to the case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see Yeremenko v. Russia (dec.), no. 42372/08, §§ 32-38, 3 May 2016).
Article V.	III.  ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
40.  The applicant argued that the Government’s failure to ensure his immediate medical examination and treatment had been in breach of the interim measure indicated under Rule 39 of the Rules of Court and had thus violated his right to individual application. He relied on Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
41.  Rule 39 provides:
“1.  The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2.  Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.
3.  The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”
Section 5.01	A.  Submissions by the parties
42.  The Government argued that, following the Court’s indication, they had ensured the applicant’s admission to the prison medical unit for surgery.
43.  The applicant maintained his complaints.
Section 5.02	B.  The Court’s assessment
(a)	1.  General principles
44.  The applicable general principles are set out in Paladi v. Moldova ([GC], no. 39806/05, §§ 84-92, 10 March 2009), and Amirov v. Russia, (no. 51857/13, §§ 65-68, 27 November 2014).
(b)	2.  Application of the above principles to the present case
45.  Turning to the circumstances of the present case, the Court notes that on 25 January 2016 it indicated to the Russian Government, under Rule 39 of the Rules of Court, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts independent from the penal system with a view to determining: (i) whether he had been receiving adequate medical care; (ii) whether his current state of health was compatible with detention in the correctional colony; and (iii) whether his state of health called for urgent surgery and/or for a transfer to an appropriate civilian or prison hospital. Furthermore, the Government were also asked to ensure his transfer to the relevant hospital for surgery, if the medical experts concluded that it was required.
46.  In response to the interim measure applied on 25 January 2016, the Government transferred the applicant to the prison medical unit almost seven weeks later, on 14 March 2016. No further steps to comply with the interim measure were taken. On 31 May 2016 the applicant refused the surgery and was sent back to the correctional colony.
47.   Having regard to the nature of the Government’s response, the Court concludes that the authorities failed to comply with the interim measure, which should have been performed “immediately” (see Salakhov and Islayamova v, Ukraine, no. 28005/08, §§ 216-24, in which the Court was unsatisfied with three-day delay in the applicant’s admission to a hospital, and Grori v. Albania, no. 25336/04, §§ 185-87, 7 July 2009, in which the delay was seventeen days). The Government did not provide any sound explanation for their failure to act diligently and in due time in response to the Court’s interim measure, and there appears to be no objective impediment or difficulty which could have prevented expedient compliance with the interim measure in the present case. Moreover, like in many similar cases (see Maylenskiy v. Russia, no. 12646/15, §§ 37-39, 4 October 2016; Klimov v. Russia, no. 54436/14, §§ 48-49, 4 October 2016; Kondrulin v. Russia, no. 12987/15, §§ 46-47, 20 September 2016; Andrey Lavrov v. Russia, no. 66252/14, §§ 38-39, 1 March 2016; Patranin v. Russia, no. 12983/14, §§ 53-54, 23 July 2015; and Amirov cited above, §§ 72-73, 27 November 2014) the Government’s submissions did not contain an analysis of the adequacy of the applicant’s medical care and the compatibility of the conditions of his detention with his state of health. As a result, the documents furnished by the authorities have little relevance to the implementation of the interim measure indicated by the Court in the present case.
48.  In the light of the above, the Court finds that the State has frustrated the purpose of the interim measure, which sought to enable the Court, on the basis of relevant, independent medical opinion, to effectively respond to and, if need be, prevent the possible continued exposure of the applicant to physical and mental suffering. Accordingly, the Court concludes that the State has failed to comply with the interim measure indicated by it in the present case under Rule 39, in breach of its obligation under Article 34 of the Convention.
Article VI.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
49.  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 6.01	A.  Damage
50.  The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.
51.  The Government argued that the claim was excessive.
52.   Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court considers that the finding of a violation of Article 34 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant (see Artur Parkhomenko v. Ukraine, no. 40464/05, § 99, 16 February 2017, and Andrey Zakharov v. Ukraine, no. 26581/06, § 75, 7 January 2016).
Section 6.02	B.  Costs and expenses
53.  The applicant also claimed EUR 1,900 for the costs and expenses incurred before the Court.
54.  The Government contested the claim.
55.  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, regard being had to the above criteria and bearing in mind that the applicant was granted EUR 850 in legal aid for his representation, the Court rejects the claim for legal costs in full.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints under Articles 3 and 13 of the Convention inadmissible;

2.  Holds that the respondent State has failed to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court, in violation of its obligation under Article 34 of the Convention;

3.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helen Keller
	Deputy Registrar	President