CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 février 2014

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RUSSIA   (Application no. 2689/12)                 JUDGMENT     STRASBOURG   6 February 2014     FINAL   07/07/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Semikhvostov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 14 January 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 2689/12) 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 Aleksandr Yuryevich Semikhvostov (“the applicant”), on 28 December 2011. 2.     The applicant, who had been granted legal aid, was represented by Ms   N. Radnayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged that the conditions in a correctional facility had been grossly unsuitable for the detention of wheelchair-bound inmates such as himself, and that he did not have an effective remedy to complain about that violation of his rights. 4.     On 30 August 2012 the application was communicated to the Government. Further to the applicant’s request, the Court granted priority to the application (Rule 41 of the Rules of Court). 5.     Subsequently, the President of the Chamber granted leave to two non-governmental organisations, the European Disability Forum and the International Disability Alliance, to make a joint written submission as third parties in accordance with Rule 44 § 3 (b) of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1965 and lives in the Leningrad Region. A.     The applicant’s version of events 7.     On 9 February 2001 the Solnechnogorsk Town Court of the Moscow Region found the applicant guilty of torture and manslaughter and sentenced him to thirteen and a half years’ imprisonment. 8.     As is evident from medical documents provided by the applicant, prior to his arrest in October 1999 he completely lost the vision in his left eye, while the vision in his right eye was substantially impaired. In 1984 he was registered as Category 3 disabled on account of his poor eyesight. 9.     In 2001, during his detention in correctional facility IK-1 in the Mordoviya Republic, the applicant was severely beaten up by warders, and sustained a serious spinal injury leading to partial paralysis of his lower extremities. He started using crutches. According to him, subsequent ill-treatment, inadequate conditions of detention and a lack of proper medical assistance caused his health to deteriorate drastically: he developed an intervertebral hernia and intravascular tumor which, in turn, resulted in the lower part of his body being completely paralysed. He became wheelchair-bound. He supported his allegations with medical certificates issued in penal medical facilities. 10.     From 1 January 2006 to 27 January 2010 the applicant served his sentence in correctional facility IK-7 in the Mordoviya Republic. In January 2010 he was transferred to correctional facility IK-11 in the Mordoviya Republic, where he was detained until his release on 14 January 2013. 11.     Having made no complaints about the conditions of his detention in facility IK-7, the applicant provided the following description of the conditions of his detention in facility IK-11 supporting his arguments with handwritten statements by a former inmate, D. On his arrival to the facility the applicant was assigned to Unit   5, which was not equipped to house wheelchair-bound inmates. A large number of two-tier beds were installed in the dormitory. The unit was dimly lit as the beds blocked the windows. Ninety inmates occupied the dormitory. 12.     The lavatory in the dormitory was not adapted for disabled people, as the lavatory pans were not at floor level and did not have rails. The applicant always asked for assistance from at least two other inmates, as he was unable to use the lavatory on his own. Not every inmate was willing to help, which made a sensitive situation even more frustrating and embarrassing for him, since he suffered from enuresis and encopresis (bladder and bowel incontinence). Relying on D.’s statement, the applicant argued that he had received assistance from inmates in the facility in exchange for cigarettes and money. Without payment, inmates had refused to help him. The applicant stressed that in addition to their unwillingness to help him, the inmates also had to perform their own daily duties in the unit. They therefore had had no free time to help him to move around the facility. The facility administration had not taken any steps to rectify the situation. The applicant cited, as an example, behavior by two inmates, Ya. and Z., appointed by the administration of the facility to assist him. The applicant insisted that they had created “acute” situations to force him to pay more for their services. When he could not pay, he had been left without any assistance, unable to go to the lavatory and forced to defecate in his underpants. The applicant also submitted that in November 2012, once the Court had communicated his application to the Russian Government, he had only been provided with a special chair to use in a lavatory room. 13.     The applicant then proceeded to describing the procedure for using the bathhouse. He had been able to use a communal bathhouse once a month when an inmate had agreed to take him there in his wheelchair. Passages throughout the correctional facility grounds had been separated by barriers approximately 20   cm high. The applicant had required assistance from at least two inmates to carry him over. In December 2010 and January 2011 he had been unable to find anyone willing to take him to the bathing facility. On the occasions he had been able to find inmates willing to help him and had paid for their services, he had been taken to the bathhouse, undressed, and carried by his hands into the cabin where he had been placed on a chair. He had showered leaning on a wall that he would not fall over. The bathing facility had not had any equipment to accommodate a disabled person such as the applicant. The shower heads had been installed too high and he had again needed to ask a detainee to help him to take a shower. Once again help had not been given willingly, as inmates had only been afforded fifteen minutes to take a shower themselves and had not wanted to spend that time helping him. 14.     Citing the handwritten statement by inmate D., the applicant stressed that inmates who had wanted to use the shower cabins in the dormitories had to pay. The shower cabin had been locked and only the supervising inmates had had access to the key. 15.     The applicant was not allowed to use the electric water heaters, which he needed to keep clean, in view of his suffering from bladder and bowel incontinence. He could not go to eat in the facility canteen, so was forced to eat in the dormitory, with food having been brought to him by inmates from the canteen. In November 2010 he did not eat for seven days as the food was served in dirty tableware. 16.     In January 2011 the applicant did not receive his daily quota of three meals a day. A cook was assigned the task of taking food to the applicant from the facility canteen. However, given that the cook was often too busy with his usual tasks, and the fact that the food was scarce, he frequently did not receive anything.     In September 2011 the applicant started receiving food in a plastic mayonnaise bowl, which was never washed or cleaned. He experienced food poisoning and stomach pain and his face, legs and arms became swollen. His requests for food to be served in suitable tableware were disregarded. 17.     On 13 December 2011 the applicant was registered as Category 1 disabled, having been diagnosed with paraplegia. 18.     According to the applicant, in the end of January 2012 he was sent to a prison hospital to determine whether he was fit to continue serving his sentence. On his return to facility IK-11 several days later the applicant was again assigned to Unit   5. He provided an identical description of the conditions of his detention, save for minor details. In particular, he argued that a hundred inmates shared the dormitory, which measured 60 sq.   m. Thirty-five inmates suffered from HIV, various stages of tuberculosis or had various disabilities. He could not take exercise in the open air, as he could not get into his wheelchair without assistance and could not leave the dormitory as the passageway was too narrow. Lavatory pans were installed on a pedestal 40   cm above the floor and were separated from each other with partitions. He always received cold food in plastic bowls, and there was no way of heating food in the dormitory. His wheelchair was taken from him in the dormitory for security reasons. 19.     The applicant and his representatives lodged a large number of complaints with various authorities. On 10 December 2010 a deputy prosecutor of the Dubravnaya District prosecutor’s office sent a letter to the applicant, informing him that the regulations concerning conditions of detention in prison facilities did not cover the provision of access ramps. However, on the prosecutor’s request ramps had been installed at the entrance to the dormitory building where the applicant was being held. The deputy prosecutor further stated that the applicant received food in the dormitory, being served by an inmate on duty who took it to him from the facility canteen. He was not asked to pay for that service and the food was served in the proper tableware and was adequate. The applicant received similar letters from various officials in 2010 and 2011. 20.     On 16 January 2012 a request to institute criminal proceedings was sent to the Investigation Department in the Mordoviya Republic. That request was forwarded to the local investigation unit and the prosecutor’s office. No   response followed. 21.     On 14 January 2013 the applicant was released from detention. Two facility officials escorted him to St. Petersburg where, according to him, he did not have family or a home. The applicant was admitted to a hospital in the Leningrad Region, where he has remained ever since, despite his efforts to find a place to stay a charity hostel. B.     The Government’s version of events 22.     Relying on certificates issued by the governor of correctional facility IK-11, photos of the applicant’s dormitory in that facility and handwritten statements by inmates from facilities IK-7 and IK-11, the Government provided a lengthy description of the conditions of the applicant’s detention. In particular, while describing the conditions of the applicant’s detention before his transfer to facility IK-11, they argued that the applicant had been able to use his legs and had therefore not needed assistance to move around, although he had allegedly attempted to conceal that fact from the authorities. 23.     The Government continued with the description of the detention conditions in facility IK-11. 1.     Unit 8 in facility IK-11 24.     On his arrival at facility IK-11 on 27 January 2010 the applicant had been assigned to Unit   8 where he had stayed for a month. A certificate issued by the governor of correctional facility IK-11 showed that the entrance to the dormitory building of Unit 8 had been equipped with a wheelchair ramp when the applicant had stayed there. Following the applicant’s transfer from the unit, that ramp had been dismantled. 25.     The Government stated that inmates had had at least 2 sq.   m of personal space. As is evident from a handwritten statement by the head of Unit 8, the applicant’s dormitory had 70 sleeping places. The Government also provided the Court with dormitory plans. According to the plan, Unit 8 was on the second floor, with at least ten stairs leading to it from the first floor. A long corridor of 32 sq.   m led to the sleeping room of 142 sq.   m where there were seventy bunks, seventy chairs and thirty-five bedside tables. A lavatory of 7.5 sq.   m, a shower room of 5.5 sq.   m and a dormitory kitchen of 14 sq.   m were accessible from the corridor. 26.     A photo submitted by the Government showed the applicant’s metal bed in a corner near a window. In a certificate the facility governor provided an explanation about the photo, indicating that 1.3 m of free space separated the applicant’s bed from the neighbouring bunk. 2.     Unit 5 in facility IK-11 27.     On 28 February 2011 the applicant had been transferred to Unit 5 where he remained until his release. Unit 5 had been on the first floor of the facility dormitory block. The dormitory had been easily accessible to the applicant. Doorways had been sufficiently wide for him to enter and move around. The Government produced handwritten statements by inmates Z. and Sem. who confirmed that the applicant had been able to enter the dormitory building without any difficulties, as the entrance door step was no more than 5   cm high. In a certificate submitted to the Court the facility governor stated that it had not been necessary to install the ramp at the entrance of the dormitory building of Unit 5, as the entrance door step had been less than 5   cm high. 28.     The Government again reiterated that at least 2 sq.   m of personal space had been afforded to inmates. The dormitory of Unit 5 had 53 sleeping places and was divided into three sleeping rooms. The applicant’s room measured 63.5 sq.   m and contained eighteen bunks, nine bedside tables and eighteen chairs. A large square corridor of 46 sq.   m separated the sleeping rooms from the remaining part of the dormitory. Six doors from the corridor led to a lavatory of 9 sq.   m, a shower room of 6 sq.   m, a locker room, a dormitory kitchen of 16   sq.   m, a store room, and an office for the unit head. 29.     The Government also submitted four photos of the dormitory, which showed rows of two-tier bunks separated by a narrow passageway. The applicant’s single-tier bed was installed by a wall in the corner near the window. According to explanations given by the facility governor, the space between the applicant’s bed and the neighbouring bunks was 1.2   m wide. 3.     Bathing and lavatory facilities 30.     The Government further described the bathing facilities. Photos of the bathhouse showed a narrow tile-covered long room with at least ten high partitions dividing the room into a number of small cubicles with a shower head installed in each of them, but no handrails or other similar equipment. The bathhouse was equipped with 16 shower heads installed 2   m above the floor. A shower handle was placed 1   m above the floor. Each inmate had twenty minutes to use the bathhouse. In view of the fact that the applicant had been registered as Category 1 disabled, he had been given an additional twenty minutes to take a shower. Relying on a handwritten statement by inmate Ya., the Government observed that that inmate had helped the applicant to use the bathhouse. 31.     The dormitories of Units nos. 5 and 8 were equipped with shower cabins with electric water heaters. Photos provided by the Government showed clean shower rooms which were tiled floor to ceiling. A curtain separated the shower from the remaining part of the room. The shower heads were installed at least 2 m above the floor. No handrails were installed in the rooms. The applicant had been allowed to use the cabins without any restrictions. The Government relied on statements by four inmates. As is evident from a handwritten statement by inmate G., the applicant had needed assistance of other inmates, including when using the shower cabins. Inmate Ya. also wrote that he and inmate G. had helped him to use them. 32.     The lavatory of Unit 8 was equipped with four squatting pans installed on pedestals 15   cm above the floor. Partitions separated the pans from each other creating cubicles 80   cm wide. The lavatory of Unit 5 had three squatting pans. The remaining description of the facilities was similar to that of Unit 8. The Government stressed that after his arrival at facility IK-11 the applicant had been given a special chair to use in the lavatory. They provided photos of the two lavatories and of the special chair the applicant had used. The photos showed several cubicles with plastic walls and full-size doors. The cubicles with lavatory pans were separated from the remaining part of the room by a high step. Rows of sinks with taps and mirrors above them were installed along a wall. The equipment was installed at a height suitable for use by able-bodied inmates. A photo of the lavatory in Unit 5 also showed a tile-covered basin with a tap above it. Given the height of the tap, the basin had been accessible to the applicant. One of the photos showed a special chair that had been made from an ordinary wooden chair, from which the base had been removed and replaced with a toilet seat. 4.     Eating arrangements 33.     As is evident from a certificate issued by the governor of facility IK-11, the applicant had always eaten in the kitchens of the dormitory buildings during the entire period of his detention. The Government stated that he had been given hot food three times a day. The facility medical personnel had checked the quality of the food daily and had kept a record of it in the log. Food had been taken to him from the canteen by inmates. According to a statement given by the facility’s chief cook, he had supervised the process of taking food to the applicant from the canteen. The food had always been served in clean dishes and had been hot. It had been taken to the applicant by inmates Sa. and G. Those two inmates confirmed that the food had been served in thermos flasks which had been clean, and that the applicant had never made any complaints about quality or quantity of the food. Nor had he ever refused it. 5.     Assistance by inmates and other aspects of detention 34.     The Government stressed that the applicant had been assisted by inmates, among them Sa., G., Ya. and Z. Those inmates had helped the applicant “willingly and free of charge” in moving around the correctional facility grounds, using the lavatory and bathhouse, and visiting the facility shop, medical unit and library. They had regularly taken food to the applicant and had fulfilled his other requests. The Government cited statements by several inmates in support of those submissions. As is evident from the inmates’ handwritten statements, the applicant had not needed assistance to move around the dormitory, as the space had been wide enough for his wheelchair. At the same time two inmates had always accompanied him if he needed to move around the facility grounds. 35.     As to other aspects of detention, the applicant had also remained under permanent medical supervision, having been provided with medical care of requisite quality, subjected to necessary diagnostic and clinical procedures and consulted by specialists in respect of his illness, although he had not always complied with medical advice. The Government also stated that the applicant had had “a tendency to exaggerate his condition”. C.     Attempts to ensure the applicant’s release on health grounds 36 .     According to the applicant, on 21 December 2011 his representatives from an NGO, the Fund in Defence of Inmates’ Rights, lodged an application with the Polyanskiy District Court of the Mordoviya Republic, seeking his release on health grounds. The representatives enclosed with their application a long list of illnesses from which the applicant suffered, including paraplegia, atrophy of the left eye, astigmatism in the right eye, a renal cyst, epilepsy, acute viral hepatitis C, and osteochondrosis of the lumbosacral section of the spine, complicated by the formation of a hernia and tumour.   Following receipt of the complaint, the District Court authorised a forensic medical examination of the applicant to determine whether he was fit to continue serving his sentence. At the end of January 2012 he was transferred to a prison hospital for that purpose. Despite remaining there for several days, he was sent back to the correctional facility without any examination having been carried out. He further alleged that the facility officials had misplaced his documents and the court had had no choice but to discontinue the proceedings. 37 .     The Government disputed the applicant’s submission, having explained that a request for the applicant to be released on health grounds had been lodged at the end of December 2011 by a representative of an NGO, the Fund in Defence of Inmates’ Rights. That request had been redirected to the governor of facility IK-11 to comply with the statutory requirements. On a number of occasions between January and May 2012 facility officials had asked the applicant to sign his application for early release or to sign a power of attorney authorising a representative of the Fund to act on his behalf in court proceedings. The applicant had refused to undergo the medical examination required under Russian law to support the release application and to sign it. Given the applicant’s refusal to comply with those requirements, the court had adjourned examination of the matter and had instructed the facility officials to provide documents showing that the applicant’s state of health had called for his release. When asked again by the officials to undergo a medical examination in a prison hospital, the applicant had refused. He had notified the authorities that he had already stayed in the hospital on a number of occasions, having undergone inpatient treatment there. In June 2012 the facility governor had asked the applicant to lodge another release application. The applicant had allegedly told him that his representative had lodged a complaint with the Court and that he would be generously compensated for every day he had been detained in the correctional facility. II.     RELEVANT DOMESTIC LAW A.     General conditions of detention 38.     The relevant provisions of domestic law governing conditions of detention in correctional facilities in the Russian Federation and provisions establishing the legal avenues for complaining about detention conditions are set out in the cases of Dirdizov v. Russia (no. 41461/10, §§ 47-62, 27   November 2012) and Reshetnyak v. Russia (no. 56027/10, §§ 35-47, 8   January 2013). B.     Detention of disabled detainees 39.     The Russian Penitentiary Code sets out certain requirements for the detention of disabled detainees. While Article 99 § 1 of the Code provides for a minimum standard of 2 sq.   m of personal space for male convicts in correctional colonies and of 3 sq.   m of personal space in prison healthcare facilities, Article 99 § 6 indicates that inmates having a Category 1 or 2 disability are entitled to “improved accommodation and living conditions”. Article 88 § 6 provides disabled detainees with a right to buy food and articles of primary necessity without any limitations. Article 90 allows ill or disabled inmates to receive additional parcels or packages, including those with medication, the content and quantity of which are to be determined by medical specialists. Disabled inmates are provided with food, clothes and individual hygiene items free of charge. They are also entitled to an enriched diet (Article 99 §§ 6 and 7). 40.     Under the Rules of Internal Order in Correctional Facilities, adopted by Order no. 205 of the Russian Ministry of Justice on 3 November 2005, disabled inmates are exempted from having to participate in daily facility roll calls. Their presence is noted wherever they are at the time, be it their dormitory, cell, and so forth. 41.     Russian law does not contain specific rules or requirements regulating the detention of wheelchair-bound detainees. III.     RELEVANT INTERNATIONAL MATERIAL 42.     The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Russia ratified the Convention on 25 September 2012. It did not ratify the Optional Protocol. Article 1 provides that: “The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” The relevant part of Article 14 provides that: “2.     States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.” The relevant part of Article 15 provides that: “2.     States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” The requirements regulating personal mobility are laid down in Article   20, which reads as follows: “States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by: Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost; Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost; Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities; Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.” 43.     In Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows: “50.     ...   Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ... 53.     States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ... 54.     The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.” IV.     RELEVANT COUNCIL OF EUROPE MATERIAL 44.     The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: e. Humanitarian assistance “64.     Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.” ... iv) prisoners unsuited for continued detention “70.     Typical examples of this kind of prisoner are those who are the subject of a short ‑ term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” ... g. Professional competence “76.     To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers. At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated. Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines. 77.     Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.” 45.     Recommendation no. R (98) 7 of the Committee of Ministers of 8   April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant: III.     The organisation of health care in prison with specific reference to the management of certain common problems C.     Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis “50.     Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ...” 46.     Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular: IV.     Guidelines for prison staff conduct D.     Care and assistance “19.     Prison staff shall be sensitive to the special needs of individuals, such ... disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs. 20.     Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required. 21.     Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules. 22.     Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.” THE LAW I.     ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 47.     The applicant complained that the conditions of his detention in facility IK-11 from 27 January 2010 until his release on 14 January 2013 had been inhuman and degrading, given that the facility premises had been unsuitable for the detention of wheelchair-bound inmates. He further complained and that he did not have an effective remedy at his disposal for the violation of the guarantees against ill-treatment. He relied on Articles 3 and 13 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “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.” A.     Submissions by the parties 1.     The Government 48 .     The Government stressed that the detention of disabled or seriously ill inmates in “ordinary” correctional penal facilities was not an established practice in the Russian Federation. They further submitted that a disabled or seriously ill inmate could lodge a court application for early release. Such applications had to be submitted through the penal facility administration and accompanied by a medical opinion showing that the inmate’s illness was included in “The List of Illnesses Precluding [a detainee] from Serving a Sentence” (as adopted by Decree no. 54 on 6 February 2004 by the Government of the Russian Federation) which could warrant an early release. The medical opinion supporting the release application could be given by at least three medical specialists from the penal system. The Government repeated their submissions related to an attempt to have the applicant medically examined to determine his application for early release (see paragraph 37 above). 49.     The Government further stressed that the administration of correctional facility IK- 11 had taken every necessary step to safeguard the applicant’s health and to ensure that he had been detained in appropriate conditions. They argued that the detention conditions had corresponded to the specific needs of the applicant, a wheelchair-bound inmate. He had had sufficient personal space, had been assisted by inmates specifically assigned to him by the facility administration for that purpose, had been free to move around the correctional facility grounds and had even been given certain privileges because of his special needs, such as an additional twenty minutes to take a shower. He had received the necessary medical care and the facility personnel had monitored his condition closely. 50.     The Government continued by raising an argument of non-exhaustion of domestic remedies. In their view, the following avenues could have provided the applicant with an effective protection of his rights: a complaint to the facility governor, a prosecutor, a court, the Ombudsman, the President of the Russian Federation, the Government, or the Russian Parliament. They drew the Court’s attention to three judgments of Russian courts allowing negligence claims by former inmates. In particular, in 2007, 2009 and 2010 courts in the Yaroslavl, Kaliningrad and Smolensk Regions had awarded damages to three inmates on account of the authorities’ failure to provide them with adequate medical assistance. Relying on a number of the Court’s judgments in cases concerning the alleged failure by detention authorities to render effective medical services to applicants, the Government further submitted that on a number of occasions the Court had already examined and dismissed complaints related to the quality of medical care in detention. They concluded by arguing that the applicant’s complaints under Articles 3 and 13 of the Convention were manifestly ill-founded. 2.     The applicant 51.     The applicant submitted that Russian law did not provide for any specific conditions for detention of disabled or ill inmates. He stressed that since there were no regulations requiring physically impaired inmates to be detained in prison hospital, they were sent to serve their sentences in “ordinary” detention facilities. In addition, there were no regulations requiring special equipment to be installed in facilities where disabled inmates were detained. 52.     With reference to the Government’s submissions about the conditions of his detention, the applicant argued that the Court should not accept as evidence handwritten statements by his fellow inmates, as they had been unable to express their views freely, having been under the control of the facility administration. He further maintained his description of the conditions of his detention in facility IK-11, relying on handwritten statements by the former inmate. 53.     The applicant argued that he had attempted to send a large number of complaints about the conditions of his detention in the facility, as could be seen from the letters he had received from various State officials in response. However, they had been seized by the facility administration and he had to use “unofficial” ways to send them. In addition, his representative from the Fund in Defence of Inmates’ Rights had also complained to various State bodies about the appalling conditions of his detention. The domestic authorities had been made sufficiently aware of his precarious situation, but had taken no steps to make his detention humane. He stressed that the Government’s argument of non-exhaustion of domestic remedies was devoid of substance. He disputed the Government’s argument that the facility officials had asked him to undergo a medical expert examination or to take any other steps to support a release application. At the same time he confirmed that he had refused another transfer to a prison hospital in February 2012, as he had already been sent to the hospital in January 2012 to undergo a medical expert examination. However, he had been sent back to the correctional facility several days later without any examination having been performed. Each trip to the hospital had been particularly difficult for him, as the prison vans had not been equipped to transport disabled inmates and he had been unable to care for himself while travelling. 54.     The applicant also stated that the Government had tried to mislead the Court. He noted that an application for his release had been lodged by his representative from the NGO, whom he had authorised to act on his behalf by way of a power of attorney executed in 2009. The applicant provided the Court with a copy of that power of attorney and a copy of a court decision redirecting his application to the facility officials. No additional requests or documents from the applicant had been necessary. The court had sent the release application to the correctional facility to collect evidence of the applicant’s medical condition. The facility officials, however, had failed to do so and had never sent the file back to the court. 3.     The third parties: the European Disability Forum and the International Disability Alliance 55.     The two organisations submitted that disabled inmates were often at a significant disadvantage as regards their access to general facilities, in cells and common areas, canteens, lavatories and shower rooms. They faced several obstacles in being autonomous and leading their daily lives with respect to their health, hygiene, nutrition and mobility. They could not participate in prison life, such as in work programmes, education and recreation, on an equal footing with other inmates. Disabled inmates were often dependent on the goodwill of their fellow inmates for their mobility and hygiene, which rendered their situations precarious and aroused in them feelings of powerlessness, indignity and humiliation which exceed the expected level of distress and hardship associated with detention. Drawing the Court’s attention to the latest international standards on human rights of persons with disabilities, the third parties stressed that the new paradigm in disability rights focused on removing barriers – physical, environmental, communicational, or attitudinal – which hindered the full and equal participation of persons with disabilities in the community and the enjoyment and exercise of their rights, including the right to health, personal mobility, and freedom from torture, inhuman or degrading treatment or punishment. 56.     Having focused on the State’s responsibility to provide reasonable accommodation to remove specific disadvantages to which disabled individuals would otherwise be exposed, the third parties stressed that the Court had already found violations of the rights of persons with disabilities under the Convention for the failure by the State to take steps to provide alternatives or to adapt to the individual’s circumstances and needs in the prison environment. They stressed that the right to personal mobility should be guaranteed even in confined environments such as prisons, as that right was a precondition to living in dignity, increasing the independence of persons with disabilities, including prisoners with disabilities, and enhancing their equal opportunities to individual subsistence and participation. States were under an obligation to make appropriate modifications in the procedures and physical facilities in detention centres to ensure that persons with disabilities enjoyed the same rights and fundamental freedoms as others when such adjustments did not impose a disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities could create detention and living conditions that amount to ill-treatment and torture. 57.     To establish a link between torture and ill-treatment and the failure to provide reasonable accommodation to persons with disabilities, the organisations relied on the Court’s judgments in cases where it had to review measures taken by the authorities with respect to the specific circumstances and needs of individual prisoners, persons with disabilities and/or persons with chronic illnesses. The third parties stressed that in those cases, the Court had found that the authorities’ failure to take measures to ensure that the applicants had been accommodated in terms of accessible or adapted facilities had amounted to treatment exceeding the minimum level of severity necessary for a finding of a violation of Article 3 of the Convention. In the third parties’ view, that case-law pointed to the fact that disabled persons had been disadvantaged in comparison to their able-bodied inmates and that the appropriate steps had not been taken to remove the disadvantage that had caused them suffering and distress beyond that associated with detention. They also reminded the Court that while the central element of reasonable accommodation required that the State, as the duty bearer, did not bear a disproportionate or undue burden, a lack of financial resources or financial difficulties could not be relied on by the State to justify its failure to guarantee a disabled inmate conditions of detention in compliance with the safeguards enshrined in Article 3 of the Convention. 58.     The third parties concluded by noting that given the serious distress and hardship experienced by persons with disabilities in the context of detention, failure to provide reasonable accommodation may constitute inhuman and degrading treatment, and may even amount to torture. B.     The Court’s assessment 1.     Admissibility 59.     The Government raised an 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 have at his disposal an effective remedy for the complaint that he had been subjected to inhuman and degrading treatment by being detained in inadequate conditions. The Court thus finds it necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention. 60.     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 61.     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 thei