CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 28 juillet 2022

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RUSSIA (Applications nos. 55025/17 and 6 others – see appended list)             JUDGMENT         STRASBOURG 28 July 2022 This judgment is final but it may be subject to editorial revision. In the case of Akhpolov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Darian Pavli, President,   Andreas Zünd,   Mikhail Lobov, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 2 June 2022, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications against Russia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.     Notice of the applications was given to the Russian Government (“the Government”). THE FACTS 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4.     The applicants alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard. Some applicants also raised other complaints under the provisions of the Convention. THE LAW JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.     The applicants complained principally that they were not afforded adequate medical treatment in detention. Mr Ovchar (application no.   38356/18) also alleged that given the state of his health, the conditions of his detention were also inadequate. The applicants relied on Article   3 of the Convention, which reads as follows: Article   3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7.     The Court notes that the applicants suffered from serious medical conditions, as indicated in the appended table, which affected their everyday functioning. Therefore, they could have experienced considerable anxiety as to whether the medical care provided to them was adequate. 8.     The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine (see Blokhin v.   Russia [GC], no.   47152/06, §   137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate (see, for example,   Gorbulya v.   Russia , no.   31535/09, § 62, 6   March 2014, with further references, and Pokhlebin v.   Ukraine , no.   35581/06, § 62, 20   May 2010, with further references) and that ‒ where necessitated by the nature of a medical condition ‒ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see, inter alia , Ukhan v.   Ukraine , no. 30628/02, § 74, 18 December 2008, with further references, and Kolesnikovich v.   Russia , no.   44694/13, §   70, 22   March 2016, with further references). The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see, for instance, Sadretdinov v.   Russia , no.   17564/06, §   67, 24   May 2016, with further references and Konovalchuk v. Ukraine , no.   31928/15, §   52, 13   October 2016, with further references) 9.     Having examined all the material submitted to it, the Court has identified the shortcomings in the applicants’ medical treatment, which are listed in the appended table. The Court has already found a violation in respect of issues similar to those in the present case (see Blokhin , cited above, §§   120-50, Reshetnyak v. Russia, no.   56027/10, §§ 49-101, 8 January 2013 and Koryak v. Russia, no.   24677/10, §§ 70-110, 13 November 2012). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicants did not receive comprehensive and adequate medical care whilst in detention. 10.     These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. 11.     In view of the above finding, the Court considers that it is not necessary to give a separate ruling on the remaining complaints lodged by Mr   Ovchar (application no.   38356/18), as regards the conditions of his detention (compare Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§   155-56, ECHR 2014). ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 12.     The applicants complained that no effective domestic remedies regarding the quality of the medical care in detention were available to them. Mr   Ovchar (application no.   38356/18) also complained that there had not been an effective domestic remedy in respect of his complaint about the conditions of his detention. The complaints fall to be examined under Article   13 of the Convention, which reads as follows: Article   13 “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...” 13.     The Court has on many occasions established that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention (see, among many other authorities, Reshetnyak, cited above, §§ 49-101, and Koryak, cited above, §§ 70-110). In the aforementioned cases, the Court established that none of the legal avenues suggested by the Government constituted an effective remedy to prevent the alleged violations or stop them from continuing, or to provide the applicants with adequate and sufficient redress for their complaints under Article   3 of the Convention. 14.     The Court sees no reason which would justify departure from its well-established case-law on the issue. It finds that the applicants did not have at their disposal an effective domestic remedy for their complaints, in breach of Article 13 of the Convention. 15.     In view of the above finding, the Court considers that it is not necessary to give a separate ruling as regards the remainder of Mr   Ovchar’s allegations (compare Centre for Legal Resources on behalf of Valentin Câmpeanu , cited above). OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 16.     Some applicants also raised issues under the Convention, relying on the relevant well-established case-law of the Court (see the appended table). These complaints are not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention, nor inadmissible on any other ground. Accordingly, they must be declared admissible. In particular, having examined all the material before it, the Court concludes that the Government has failed to comply with the interim measure indicated by the Court under Rule 39 of the Rules of the Court in application no. 51076/18, in breach of its obligations under Article   34 of the Convention (see, among other authorities, Khloyev v. Russia , no. 46404/13, §§   63-68, 5 February 2015, and Salakhov and Islyamova v. Ukraine , no. 28005/08, §§ 216-24, 14 March 2013). It further concludes that the complaints by the applicant in application no.   55025/17, as indicated in the appended table, disclose a violation of the Convention in the light of its findings in, among many authorities,   Svinarenko   and Slyadnev   v.   Russia   [GC], nos. 32541/08   and 43441/08, §§   122-39, ECHR   2014 (extracts), and   Vorontsov and Others v.   Russia,   nos. 59655/14   and 2 others, §§   27-31, 31   January 2017. REMAINING COMPLAINTS 17.     The applicant in application no. 51076/18 also raised other complaints under Article   3 of the Convention. 18.     The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles   34 and   35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article   35   §   4 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 19.     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.” 20.     Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Kolesnikovich, cited above, §§ 82-92, Tselovalnik v.   Russia, no. 28333/13, §§ 70-77, 8 October 2015 and Budanov v.   Russia, no.   66583/11, §§ 77-83, 9 January 2014), as well as to the amount of the compensation awarded at the domestic level to the applicant in application no.   49006/19, the Court considers it reasonable to award the sums indicated in the appended table. 21.     The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaints about the poor quality of the medical assistance in detention, the lack of an effective domestic remedy in that regard and other complaints under well-established case-law of the Court (see the table appended below) admissible, considers that it is not necessary to give a separate ruling in respect of the complaints raised under Articles   3 and 13 of the Convention about the conditions of detention and absence of an effective domestic remedy in application no.   38356/18 and dismisses the remaining complaints raised in application no. 51076/18 as inadmissible; Holds that there has been a breach of Article   3 of the Convention on account of the inadequate medical care in detention provided to the applicants; Holds that there has been a breach of Article   13 of the Convention on account of the lack of an effective domestic remedy regarding the applicants’ complaints about the quality of the medical care in detention; Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table); Holds (a)   that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 28 July 2022, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.     Viktoriya Maradudina   Darian Pavli   Acting Deputy Registrar   President     APPENDIX List of applications raising complaints under Articles 3 and 13 of the Convention (inadequate medical treatment in detention and lack of any effective remedy in this regard) No. Application no. Date of introduction Applicant’s name Year of birth Representative’s name and location Principal medical condition Shortcomings in medical treatment Dates Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]     55025/17 26/07/2017 Khetag Vladimirovich AKHPOLOV 1982     HIV/AIDS Lack of/delay in consultation by a specialist, lack of prompt antiretroviral therapy, since 2013 the applicant is detained and suffers from HIV infection; he is currently detained in medical correctional facility no.   4 in the Zabaykalskiy Region, during his detention the applicant’s antiretroviral therapy was interrupted at least 2 times; CD4 count tests were regularly delayed   22/06/2017 – pending More than 4 year(s) and 9 month(s) and 23 day(s) Art. 3 - use of metal cages and/or other security arrangements in courtrooms - placement of the applicant in a metal cage in a court hearing before the Supreme Court of the Russian Federation on 02/02/2017 (by means of video link from a remand prison). 19,500     38356/18 31/10/2018 Vladimir Borisovich OVCHAR 1960     Cancer Lack of/delay in consultation by a specialist, lack of/delay in medical examination, lacking/delayed diet   27/02/2017 – pending More than 5 year(s) and 1 month(s) and 18 day(s)   15,000     51076/18 09/10/2018 Ilya Eduardovich ROMANOV 1967 Maryin Sergey Trofimovich Saransk Cerebrovascular accident; chronic health condition (hypertension). On 24 October 2019 the applicant lost consciousness in his cell. He was transferred to a prison hospital and diagnosed with an acute cerebrovascular accident (stoke), motor aphasia (lack of speech), right-sided paresis (lack of muscle function), cardiac insufficiency; his condition was described as “serious”. Lack of/delay in medical examination, lacking/delayed drug therapy.   24/10/2019 – 11/04/2020 5 month(s) and 19 day(s) Art. 34 - hindrance in the exercise of the right of individual petition   On 28/11/2019, the Court decided to indicate to the Government, under Rule 39 of the Rules of Court, to grant the request for the interim measures and to immediately provide the applicant with the proper medical examination and treatment. The Government were requested to undertake the following measures to secure the applicant rights: (a) to ensure the applicant’s immediate examination by competent health professionals independent of the Federal System of Execution of Punishment (ФСИН) with a view to determining: (1) whether the treatment which he was receiving was adequate with regard to his medical condition; (2) whether his state of health was compatible with detention in the prison system; (3) whether his condition required his admission to a specialist, possibly civilian, hospital; (b) to ensure the applicant’s transfer to an appropriate, possibly civilian, medical institution, should competent health professionals independent of the Federal System of Execution of Punishment (ФСИН) conclude that this is necessary; (c) to ensure that the applicant’s relatives and lawyers had access to the applicant.   On 16/12/2019 the Government submitted medical documents (examination reports of 15-16/11/2019 and 04/12/2019). According to the medical examinations, the applicant’s medical treatment was adequate and it was not necessary to transfer the applicant to a civilian hospital. No medical examinations were conducted by competent health professionals independent of the Federal System of Execution of Punishment (ФСИН).   On 31/03/2020 the Temnikovsky District Court of the Republic of Mordovia released the applicant from serving his sentence (enforced on 11/04/2020). 15,000     44215/19 15/07/2019 Viktor Nikolayevich MIKHAYLOV 1969     Hip replacement, broken element in a hip replacement mechanism. Lack of surgery to remove a metal bolt. On 05/02/2014 the applicant broke his left hip and had a surgery, a metal hip replacement device was implanted. In 2015 the device components broke off. It was decided to perform the relevant surgery after the complete healing of the fracture. No surgery was performed in 2016. In 2018 a medical practitioner concluded that it was impossible to remove the broken components. The applicant successfully challenged that decision in court which confirmed the applicant’s right to have a surgery. No surgery has been performed to date.   18/08/2016 – pending More than 5 year(s) and 7 month(s) and 27 day(s)     15,000     46841/19 12/08/2019 Svetlana Ivanovna MARTYNOVA 1974     Multiple cutaneous melanoma Lack of supervision by an oncologist and follow-up cancer-related examinations and treatment at IZ-1 Rostov Region and IK-8 Kostroma Region   26/07/2017 – pending More than 4 year(s) and 8 month(s) and 19 day(s)   15,000     49006/19 02/09/2019 Gennadiy Khanaliyevich KURBANOV 1991 Kopteyeva Anastasiya Vladimirovna Chita Physical injury, cancer, sarcoma of the left knee. Failure to perform a surgery, the applicant is detained in IK-7 Zabaykalskiy Region since February 2015, lack of/delay in medical examination, lack of/delay in medical testing, lacking/delayed drug therapy, lack of/delay in consultation by a specialist.   16/01/2017 – pending More than 5 year(s) and 2   month(s) and 29   day(s)   14,000     59195/19 05/11/2019 Alan Petrovich MINAYLENKO 1978     HIV/AIDS, encephalopathy, hepatitis, polyneuropathy Lacking/delayed drug therapy, lack of/delay in consultation by a specialist, the applicant is detained in a prison medical unit no. 39 in Kaliningrad.   25/09/2018 – 23/03/2020 1 year(s) and 5   month(s) and 28   day(s)   15,000   [1] Plus any tax that may be chargeable to the applicants.