CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 janvier 2013

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RUSSIA   (Application no. 56027/10)             JUDGMENT     STRASBOURG   8 January 2013       FINAL   08/04/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Reshetnyak v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Nina Vajić,   Anatoly Kovler,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 4 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 56027/10) 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 Vitaliy Vasilyevich Reshetnyak (“the applicant”), on 3 September 2010. The applicant was represented by Ms O. Druzhkova, a lawyer practicing in Moscow. 2.     The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had not benefited from adequate medical care in detention, that the conditions of his detention in a medical correctional colony had been inhuman and that there had not been effective remedies available to him to complain of a violation of his right to proper medical services and adequate conditions of detention. 4.     On 16 May 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Further to the applicant’s request, the Court granted priority to the application (Rule 41 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1979 and lived until his arrest in the city of Stavropol, Stavropol Region. A.     Criminal proceedings against the applicant 6.     On 3 March 2006 the Stavropol Promyshlennyy District Court found the applicant guilty of aggravated robbery and sentenced him to six years and six months’ imprisonment, which he was to serve in a medical correctional facility given that he suffered from tuberculosis. B.     Conditions of the applicant’s detention 7.     On 1 November 2006 the applicant was transferred to medical correctional colony no. 8 in the town of Neftekumsk, Stavropol Region. As stated in official reports submitted by the Government, colony no. 8 primarily accommodates inmates suffering from tuberculosis, irrespective of the detention regime that they have been sentenced to. It also has a hospital for inpatient treatment of inmates. 1.     The Government’s submissions 8 .     The Government, relying on certificates issued by the acting director of the colony in July 2011, submitted that the colony is composed of seven dormitory buildings measuring, in total, 5,296.6 square metres and having 1,100 sleeping places. At the material time, the inmate population was 995 persons. The Government stressed that during the entire period of the applicant’s detention in the colony, the inmate population had not exceeded the maximum design capacity of the colony. 9 .     The Government further submitted that the applicant had been detained in dormitory rooms nos. 6 and 3 which, respectively, measured 117.4 and 74.1 square metres, had 40 and 24 sleeping places and accommodated 38 and 23 detainees. In contrast, as stated in the certificates issued by the acting director of the colony, dormitory room no. 6 was equipped with 39 sleeping places and dormitory room no. 3 had 27 sleeping places. Furthermore, the acting director noted that it was impossible to provide statistical information on the number of detainees kept together with the applicant in the dormitories, as daily logs of the prison population had not been drawn up. At the same time, given that the number of inmates had never exceeded the design capacity of the colony dormitories and the inmates had always been distributed evenly among the dormitories, there was no doubt, in the acting director’s view, that the applicant had always had a sleeping place. In particular, as confirmed by the certificates presented by the Government, each year between 2006 and 2011 the Stavropol Regional Service for the Execution of Sentences capped the number of detainees who could be detained in correctional colony no. 8. In particular, for 2006, 2007 and 2008 the cap was 833 persons, with the actual number of detainees being 807, 679 and 696 in 2006, 2007 and 2008, respectively. In 2009, when the cap was set at 1,035 inmates, the colony had accommodated 822 detainees. In 2010 and 2011 the maximum number of inmates detained in the colony had varied slightly between 1,040 and 1,057, with the maximum capacity of the facility having been set at 1,056 and 1,100 persons, respectively. 10.     The Government further provided information on the housing and sanitary conditions in the dormitories. Each dormitory room had seven windows, with three of them measuring 90 centimetres in width and 110 centimetres in height and the other four windows being 110 centimetres high and 140 centimetres wide. Windows facing the colony grounds and widows facing another dormitory were covered by a steel mesh, with the distance between bars being no more than 100 to 200 millimetres. A small window casing 96 centimetres long to 36 centimetres wide could be opened to let fresh air in. The dormitories did not have an artificial ventilation system. 11.     On certain occasions the applicant had also been kept in room no. 7 in the colony hospital, where he had undergone inpatient treatment. Seven other inmates had been detained together with the applicant in room no. 7, which measured 25.8 square metres and was equipped with eight bunks. The room had two windows each measuring approximately 3 square metres. 12.     The Government provided the Court with the inmates’ daily schedule. According to that schedule, following the wake-up call at 6.a.m., inmates were afforded an hour and a half in which to wash themselves and have their breakfast. Another hour between 8.30 and 9.30 a.m. was devoted to the morning roll call of the prisoners. Between 9.30 and 11.30 a.m. detainees underwent various medical procedures. After lunch, from 11.30 a.m. and 2.30 p.m., and another hour-long roll call, detainees were given more than three hours to take a bath in the colony bathhouse. Dinner from 6 to 8 p.m. preceded an hour and a half of personal time. The lights-out call was made at 10 p.m. The daily schedule of the colony population slightly varied on weekends, with educational and cultural activities or hobbies replacing the time afforded for medical procedures. The Government also submitted that the time for daily walks or personal time which inmates could spend outside the dormitories was never limited. The strict obligation to remain in the dormitory only applied at night time, between the lights-out and wake-up calls. Detainees could take walks in recreation yards, which measured between 365 and 380 square metres for each of the dormitory buildings. 13.     Dormitories were cleaned twice a day by inmates on duty. Supervision of the cleaning crew was ensured by the medical assistant on duty. The disinfection and disinfestations of the premises were performed once every three months. There had been no outbreak of infectious diseases in the colony in eight years. 14.     The Government also submitted documents showing that the food rations provided to inmates were sufficient and included meat, fish, dairy products, vegetables, eggs, juice, bread, and so on. They also argued that the food was of good quality and asserted that inmates received an enriched diet in full compliance with medical recommendations. 2.     The applicant’s submissions 15.     According to the applicant, the conditions of his detention in the colony had been appalling and extremely overcrowded. The colony, designed to accommodate six hundred detainees, had in fact housed more than a thousand inmates, leaving each inmate with less than 1.5 square metres of personal space. The applicant submitted that the situation had been particularly serious until 2009, when a new dormitory had been built in the colony. While not disputing the size of dormitory room no. 6, he argued that it had had 66 sleeping places. He, however, confirmed that he had at all times had an individual sleeping place. At the same time, given the number of detainees in the dormitory rooms, the entire space in them was taken up by two-tier bunks, thus leaving almost no personal space for inmates. He further submitted that the windows were not double glazed. In the absence of an artificial ventilation system, it was very cold in winter and hot in summer. The windows did not provide sufficient ventilation with fresh air, which had a further negative impact on the health of detainees suffering from tuberculosis. He insisted that inmates were not permitted to open window casings to let the fresh air in. 16.     The applicant further disputed the Government’s argument that inmates spent the major part of their day outside. He stressed that the recreation yard, which was used at least by four colony divisions, measured 50 metres in length and 22 metres in width. The four divisions were each formed of at least 250 persons. The recreation yard was clearly not meant to accommodate so many inmates. It also did not offer any protection from sun or rain. 17.     The lavatory was installed outside the dormitory buildings and did not have hot water. Disinfection was performed on rare occasions, prior to the arrival of supervising authorities. The lavatory offered partial privacy. While lavatory pans were separated from each other by partitions, they were not separated from the passageway and the washbasin. 18.     The food was scarce and of very poor quality. Inmates were provided with no more than forty percent of their daily ration. Products such as meat, butter, milk, fruit and sugar were entirely missing from their diet. 19 .     The applicant supported his submissions with colour photos of the dormitory, the lavatory and the recreation premises. The photos showed a rather sombre room with two long rows of two-tier bunks. A passageway sufficient for only two people to pass was left between the two rows. The bunks were separated from each other by a small cupboard. Inmates had hung linens and uniforms on the bunks to get some privacy. The bunks were installed in such a way that some of them blocked the windows. The photos also showed a heavily scratched floor and walls with peeling paint. The kitchen area had several large cupboards and a long table in a very dilapidated state. A similar state of dilapidation was shown on the photos of the lavatory. The recreation yard presented a rectangular asphalt-paved area surrounded by dormitory buildings. Grass and soil covered large parts of the yard where the asphalt had cracked. A large bucket for food waste was installed in the yard, near the dormitory entrance door. C.     Quality of medical care 20.     The Government provided the Court with a copy of the applicant’s medical records, written by hand and recording his condition from the start of his detention. They also submitted a typed version of the same records to facilitate the Court’s task of deciphering the doctors’ handwriting. At the same time, given discrepancies between the two versions, with pieces of the handwritten version missing from its typed copy and a selective approach in copying the specific wording from the handwritten version to the typed one, the Court will only base its findings on the handwritten version of the applicant’s medical records. 21.     As is evident from the records, the applicant was diagnosed with tuberculosis in 2000 and underwent treatment in tuberculosis hospitals in Stavropol on a number of occasions. In 2005 he suffered the reactivation of the illness. Between 13 June and 1 November 2006 he received treatment in the tuberculosis department of the prison hospital in colony no. 3. 22 .     Following his transfer to medical colony no. 8 the applicant was examined by a tuberculosis specialist, having been diagnosed with infiltrative, focal tuberculosis of the left lung. He was prescribed a dose of rifampicin and ethambutol. A chest X-ray examination performed on the following day confirmed the diagnosis. On 30 November 2006 another examination of the applicant led to his treatment being amended. The tuberculosis specialist drew up a list of drugs which were to comprise the applicant’s chemotherapy regimen, including isoniazid, rifampicin, ethambutol, paracetamol and another medicine, which appears to have been an antibacterial drug. Three antibacterial drugs were crossed out from the list, with only rifampicin being left. A certificate drawn up by the head of the Stavropol Regional Service for the Execution of Sentences on 27   March   2008 and submitted to the Court by the Government states that the colony bought a “sufficient” amount of anti-tuberculosis drugs whenever it received funds for that purpose, with the exception of izoniasid, kanamycin and reserve anti-tuberculosis drugs. In addition, the Government provided the Court with certificates issued by the deputy head of the medical department of colony no. 8. Those certificates recorded a calculation of the anti-tuberculosis medicines which remained in the colony on the last days of each year between 2006 and 2011. As is evident from those certificates, from 2006 to 2010 the colony did not have second-line anti-tuberculosis medicines, with the exception of kanamycin. The situation only changed in 2010, when the colony received at least two more types of the antibacterial medicines from the reserve list. The list further expanded in 2011. 23 .     Each subsequent examination between 4 December 2006 and October 2007 led to the applicant’s treatment being amended, to only include moderate analgesic and anti-inflammatory drugs, vitamins, nasal drops, cough medicine, hepatoprotectors and herbal sedatives. The only exception occurred in March 2007 after a prison doctor had received the results of the applicant’s clinical blood and sputum smear testing and a tomography scan. He prescribed the applicant a dose of antibacterial medicine based on a combination of isoniazid and ethambutol. The applicant did not cease to complain of coughing, fever, chest pain and headache. During that period he was twice subjected to a chest X-ray exam, with the most recent exam being performed on 19   September 2007. On the basis of that exam, the doctor concluded that the applicant’s tuberculosis had become destructive to lung tissue. A week later, ethambutol and a complex antibacterial drug based on isoniazid were introduced to his regimen. In October 2007 the applicant was sent for a chest tomography examination and his sputum and blood were taken for testing. Despite the fact that the doctor noted a clearly negative dynamic in the applicant’s condition, the examinations did not lead to any recommendations or amendments in the treatment until the applicant started coughing up blood in December 2007. Having given him an injection of potassium chloride and having prescribed a synthetic analogue of vitamin K, a cough medicine, nasal drops, paracetamol, a muscle relaxant and antibiotics, the prison doctor sent the applicant for testing. With the tests on 11   December 2007 having shown that the applicant was now smear positive, the prison doctor also added an antihistamine and drew a “net” of iodine solution on the applicant’s chest. 24 .     On 6 February 2008, after the prison doctors had finally diagnosed the applicant with infiltrative and disseminated destructive tuberculosis of the upper lobe of the left lung, he started receiving treatment with rifampicin, ethambutol, and fenazid (a complex antibacterial drug based on isoniazid). In March 2008 a medical panel declared that the applicant should be classed as category 2 disabled. Until December 2008 the applicant complained of permanent pain in the chest, fever, fatigue, a dry mouth, and coughing up blood. With tests performed between February and December 2008 showing no positive changes in the applicant’s condition, demonstrated through the continuous presence of mycobacterium tuberculosis (MBT) in his sputum, the doctors amended the treatment. While the prescription of the three antibacterial drugs was not reconsidered, each examination of the applicant led to another medicine being introduced into his regimen. Those medicines included analgesics, cough medicines, nasal drops, antihistamines, multivitamins, muscle relaxants, heart and anti-inflammatory medicines, antibiotics and so on. The handwritten version of the medical records shows that on a number of occasions the doctors noted that treatment was only being provided with medicines which the colony had or which were sent to the applicant from home. 25.     At the start of December 2008 the applicant suffered a particularly severe bout of coughing up blood. After two days of complaints he was transferred to the colony hospital for inpatient treatment. On admission to the hospital doctors described his diagnosis as follows: infiltrative destructive tuberculosis of the upper lobe of the left lung, presence of MBT, tubercular intoxication and coughing up blood. 26.     As is clear from the applicant’s medical records, the chemotherapy regimen prescribed to him in the hospital did not include any new antibacterial drugs or any other medicines which he had not received before, comprising fenazid, ethambutol, rifampicin, vitamins, a cough medicine, potassium chloride and a hepatoprotector. Having considered that the applicant’s condition had improved, on 4 February 2009 the doctors authorised his release from the hospital for further outpatient treatment. 27 .     The first chest X-ray examination and sputum culture tests performed within two weeks of the applicant’s release from the hospital showed that the state of his lungs had not changed, with the diagnosis remaining infiltrative and disseminated destructive tuberculosis, and that he still tested positive for the presence of MBT. A series of repeated health complaints made by the applicant were addressed by the prison doctors through the introduction of vitamins, anti-inflammatory medicines and muscle relaxants to his treatment regime. In March 2009 the applicant started receiving a second-line antibacterial medicine. Three weeks later doctors recorded an escalation of the tuberculosis process and prescribed the applicant aspirin, tetracycline, paracetamol and an analgesic. With the tests showing that the applicant remained smear-positive and that his condition had not improved, given the growing number of his health complaints, including that of coughing up blood, the doctors continued amending his treatment, prescribing two of the three antibacterial drugs which the applicant had already received and replacing one with another one when his condition appeared to deteriorate further. 28.     Following a further escalation of the illness in March 2010, the applicant was admitted to the prison hospital. A month-long course of treatment with the same three antibacterial medicines and a number of drugs which he had received on his previous admission to the hospital resulted in the applicant’s release from the hospital with the same diagnosis but the conclusion that his condition had improved. 29 .     Towards the end of May 2010 the applicant suffered another attack of the illness, having started coughing up blood again. He was diagnosed with pulmonary haemorrhage and was prescribed aminocapronic acid, to be administered through a drip. Having noted a continuous serious deterioration of the applicant’s condition, in June 2010 the attending doctor prescribed a long list of medicines and vitamins and recommended his admission to the hospital at weekends. At the same time, the doctor noted the absence of ethambutol in the colony. On 15 July 2010 the applicant was transferred to the hospital for inpatient treatment. Having received treatment with isoniazid, rifampicin, ethambutol, vitamins, cough medicine and hepatoprotectors, the applicant was released from the hospital on 23   August   2010 following a determination that his condition had improved. 30 .     Less than a month later the applicant again complained of a significant deterioration of his health. The handwritten version of his medical records shows that the doctor intended to prescribe the applicant isoniazid but was unable to do so, having noted that the colony did not have a supply of that drug. The last two weeks of October 2010 were marked by the applicant’s multiplying complaints of a serious fever, shivering, coughing up blood, chest pain, and so on. Having noted the complaints and the absence of any positive dynamic in the applicant’s sputum and blood tests and his X-ray exams, and despite the applicant having continued to receive treatment with rifampicin, on 27   October 2010 the doctor authorised his admission to the hospital. The applicant was taken to the hospital on 7   November 2010. During the month that he was admitted to the hospital he finally started receiving treatment with second-line anti-tuberculosis drugs. The sputum smear tests performed in the hospital at the end of the applicant’s treatment revealed no presence of MBT. The applicant was released from the hospital because the colony authorities were starting reconstruction works. 31 .     Following his release from hospital, the applicant continued receiving treatment with first-line anti-tuberculosis medicines, including ethambutol and a derivative of isoniazid. An X-ray exam and tests performed on 24 February 2011 revealed that the applicant had again tested positive for the presence of MBT and that he suffered from fibrous-cavernous and disseminated destructive tuberculosis of the left lung. Three days later the applicant again complained to the medical personnel that he was coughing up blood. Despite the applicant’s treatment being complemented by drugs reducing vascular permeability, analgesics, immunomodulators, vitamins, hepatoprotectors and sedatives, his condition continued deteriorating. In March 2011 he was again prescribed second-line antibacterial drugs. With no positive dynamic being recorded, on 8   April   2011 the applicant was relieved from participating in daily roll calls of the prisoners. A test performed at the end of May 2011 showed that the applicant was smear-negative. The most recent entries in the applicant’s medical records state that he was feverish in the evenings and that doctors had tried to address his condition by supplementing his regimen with an antibiotic, aloe, vitamins and a cough syrup. At the same time, the attending doctor had authorised drug susceptibility testing. The test showed resistance to two of the four first-line antibacterial medicines and to at least one anti-tuberculosis drug from the reserve list. 32.     In August 2011 the applicant was transferred to the tuberculosis department of detention facility no. 2 to undergo inpatient treatment. On admission to the hospital doctors recorded that he was again smear-positive, that he had multidrug resistance (MDR) and that he suffered from chronic tubercular intoxication, frequent hemoptysis, pulmonary heart disease and cachexia. A medical certificate issued by the head of the tuberculosis department on 23 August 2011 indicated that despite the treatment the applicant’s condition was considered moderately severe and that he required inpatient treatment in a tuberculosis hospital. D.     Complaints to officials 33 .     A certificate submitted by the Government showed that the applicant sent an extremely large number of complaints to the President of the Russian Federation, the Prosecutor General, the Ministry of Health Care, the Federal Service for the Execution of Sentences and various prosecution officials concerning the conditions of his detention and the quality of medical care in the colony. A number of other inmates joined his complaints to those officials. The officials found no defects in the medical care afforded to the detainees and did not consider that the conditions of the applicant’s detention in the colony were unsatisfactory. The applicant provided the Court with copies of some of his complaints and the responses to them. II.     RELEVANT DOMESTIC LAW A.     Provisions governing the quality of medical care afforded to detainees 34.     The relevant provisions of domestic and international law governing the health care of detainees, including those suffering from tuberculosis, are set out in the following judgments: A.B. v. Russia , no.   1439/06, §§ 77-84, 14   October 2010; Yevgeniy Alekseyenko v. Russia , no.   41833/04, §§ 60-66 and 73-80, 27 January 2011; and Pakhomov v.   Russia , no. 44917/08, §§ 33-39 and 42-48, 30 September 2011. B.     Provisions establishing legal avenues for complaints about the quality of medical assistance 1.     Prosecutors Act (Federal Law no.   2202-1 of 17 January 1992) 35.     The list of prosecutors’ official powers includes the rights to enter premises, to receive and study materials and documents, to summon officials and private individuals for questioning, to examine and review complaints and petitions containing information on alleged violations of individual rights and freedoms, to explain the avenues for protection of those rights and freedoms, to review compliance with laws and regulations, to institute administrative proceedings against officials, to issue warnings about the unacceptability of violations and to issue reports pertaining to the remedying of violations uncovered (sections 22 and 27). 36.     A prosecutor’s report pertaining to the remedying of violations uncovered is served on an official or a body, which has to examine the report without delay. Within a month specific measures aimed at the elimination of the violation(s) should be taken. The prosecutor should be informed of the measures taken (section 24). 37 .     Chapter 4 governs prosecutors’ competence to review compliance with laws and regulations by the prison authorities. They are competent to verify that prisoners’ custody is lawful and that their rights and obligations are respected, as well as to oversee the conditions of their detention (section   32). To that end, prosecutors may visit detention facilities at any time, talk to detainees and study their prison records, require the prison administration to ensure respect for the rights of detainees, obtain statements from officials and institute administrative proceedings (section   33). Decisions and requests by a prosecutor must be unconditionally enforced by the prison authorities (section 34). 2.     Code of Civil Procedure: Complaints about unlawful decisions 38 .     Chapter 25 sets out the procedure for the judicial review of complaints about decisions, acts or omissions of the State and municipal authorities and officials. Pursuant to Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation, complaints by suspects, defendants and convicts of inappropriate conditions of detention must be examined in accordance with the provisions of Chapter 25 (point   7). 39.     A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the directly higher official or authority (Article 254). The complaint may concern any decision, act or omission which has violated rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on the citizen (Article 255). 40.     The complaint must be lodged within three months of the date on which the citizen learnt of the breach of his rights. The time period may be extended for valid reasons (Article 256). The complaint must be examined within ten days; if necessary, in the absence of the respondent authority or official (Article 257). 41.     The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. If necessary, the court may obtain evidence on its own initiative (point 20 of Ruling no.   2). 42.     If the court finds the complaint justified, it issues a decision requiring the authority or official to fully remedy the breach of the citizen’s rights (Article 258 § 1). The court determines the time-limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full (point 28 of Ruling no. 2). 43 .     The decision is dispatched to the head of the authority concerned, to the official concerned or to their superiors, within three days of its entry into force. The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt (Article 258 §§ 2 and   3). 3.     Civil Code 44.     Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article   1064 §§   1, 2). 45.     State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069). Irrespective of any fault by State officials, the State or regional treasury are liable for damage sustained by a citizen on account of: (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure; and (iii) unlawful administrative punishment (Article 1070). 46.     Compensation for non-pecuniary damage is effected in accordance with Article 151 of the Civil Code and is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated if the damage was caused: (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment; or (iii) through dissemination of information which was damaging to the victim’s honour, dignity or reputation (Article 1100). B.     Provisions governing conditions of detention in medical colonies 47.     Article 99 § 1 of the Penitentiary Code of 8 January 1997 lays down a minimum standard of two square metres of personal space for male convicts in correctional colonies and a minimum standard of five square metres of personal space for convicts in medical facilities. 48.     Article 101 § 2 of the Code provides that special medical correctional colonies are established for the detention and outpatient treatment of convicts suffering from open tuberculosis. Specific medical facilities (such as tuberculosis hospitals) within the correctional system provide inpatient medical assistance to convicts. THE LAW I.     ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 49.     The applicant complained that the authorities in colony no. 8 had not taken steps to safeguard his health and well-being, failing to provide him with adequate medical assistance in breach of Article 3 of the Convention. He also complained under the same Convention provision that the conditions of his detention in the medical colony had been appalling. Article   3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The applicant finally claimed that he had not had at his disposal an effective remedy for the violations of the guarantee against ill-treatment, which is required under Article 13 of the Convention: “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 50.     The Government put forward two lines of argument, insisting that the applicant had had a choice of effective remedies before him but had not exhausted them and, at the same time, arguing that both the treatment provided to the applicant during the entire period of his detention and the conditions of his detention in colony no. 8 had corresponded to the highest standards. As to the first argument, the Government stressed that the applicant had not complained to a court that he was not receiving adequate medical assistance and that the conditions of his detention were unsatisfactory. The procedure for making claims before a court was established in Chapter 25 of the Code of Civil Procedure, as clarified by the Supreme Court’s Ruling no. 2 of 10 February 2009. Having relied on two cases examined by the Russian courts and the Court’s findings in the case of Popov and Vorobyev v. Russia (no. 1606/02, 23 April 2009), they submitted that it had also been open to the applicant to lodge a tort action claiming compensation for damage caused by the allegedly inadequate medical assistance and poor conditions of his detention. Relying on Resolution no.   CM/ResDH(2010)35 adopted at the 1078 th Meeting of the Committee of Ministers of the Council of Europe, the Government further noted that statistics and a number of cases presented to the Committee had demonstrated the developing practice of the Russian courts in awarding compensation for non-pecuniary damage caused by unsatisfactory conditions of detention. In the Government’s opinion, the applicant’s failure to apply to a Russian court with a complaint had to be interpreted by the Court as his unwillingness to comply with the admissibility requirements set out by Article 35 §§ 1 and 4 of the Convention. The Government stressed that his complaints under Article 3 should therefore be dismissed for failure to exhaust domestic remedies and the complaints under Article 13 were obviously manifestly ill-founded. 51.     In the alternative, the Government argued that the applicant had been provided with adequate care throughout his detention in the medical colony. He had received effective treatment, both in the colony and its hospital. The medical personnel had possessed the necessary training and skills to treat the applicant. The facilities had been equipped with medicines and medical equipment according to established norms. The Government pointed out that the applicant had undergone 55 medical examinations, tests and procedures, including 27 X-ray exams, 27 clinical blood tests and 25 sputum smear tests. They also stressed that his current condition was considered satisfactory and that he was under medical supervision on account of his chronic disease. 52.     As regards the conditions of the applicant’s detention in colony no. 8, the Government argued that they had fully satisfied legal requirements. The colony was not overcrowded, with only 995 inmates being detained there – under the current cap of 1100 persons. The sanitary conditions were proper, with regular disinfection of the facilities. The applicant had been able to spend the major part of his day outside in the recreation yard without any limitation, save for the requirement to stay in the dormitory at night. The food was of good quality and sufficient in amount. 53.     The applicant asked the Court to dismiss both arguments raised by the Government, emphasising that his complaints to various domestic authorities had either produced no response or had been dismissed for superficial reasons. He further stressed that he had been unable to obtain the medical assistance he needed while in detention. He relied on various medical records showing that his condition had continued deteriorating even after the authorities had acknowledged that he had become disabled. He noted that for years the colony had not received necessary antibacterial medicines. It did not employ a sufficient number of medical specialists. It was impossible for inmates to receive daily medical assistance, given that doctors only saw patients for two-and-a-half hours per day, thus affording only a very short visit to each inmate. The applicant submitted that a large number of inmates died each year, with the number of deaths being bigger than at any other correctional facility in Russia. The lack of medical assistance had subjected him to extreme suffering. The applicant further argued that his condition had been further exacerbated by the appalling conditions of his detention. He had been detained with many sick inmates in severely overcrowded conditions for years. His ability to leave the dormitory and to stay in the recreation yard could not have compensated for the lack of personal space, as the yard had also been too small to accommodate such a large number of inmates and had not offered any protection from the rain, sun or cold. B.     The Court’s assessment 1.     Admissibility 54.     The Government raised the objection of non-exhaustion of domestic remedies by the applicant. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not had at his disposal an effective remedy for the complaint that he had been subjected to inhuman and degrading treatment by being deprived of effective medical care and being detained in inadequate conditions at the medical colony. Thus, the Court finds it necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention. 55.     The Court further notes that the applicant’s complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2.     Merits (a)     Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention i.     General principles 56.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against the State before the Court to first use the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24 ). 57.     An applicant is normally required to have recourse only to those remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Johnston and Others v. Ireland, 18 December 1986, § 22, Series A no. 112 ). It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement. 58.     The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France , 19   March 1991, § 34, Series A no. 200). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v.   Belgium , 6   November 1980, § 35, Series A no. 40). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicants (see Akdivar and Others v.   Turkey , 16 September 1996, §§ 65-68, Reports of Judgments and Decisions 1996 ‑ IV). 59.     The scope of t