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FIRST
SECTION
CASE OF VLADIMIR VASILYEV v. RUSSIA
(Application
no. 28370/05)
JUDGMENT
STRASBOURG
10
January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vladimir Vasilyev
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos, judges,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28370/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Vladimir Aleksandrovich
Vasilyev (“the applicant”), on 18 July 2005.
- The
applicant, who had been granted legal aid, was represented by
Mr T. Misakyan, 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.
- The
applicant complained about inadequate medical assistance in a
detention facility and the unfairness of civil proceedings.
- On
26 June 2009 the President of the First Section decided to give
priority treatment to the application and to give notice of it to the
Government.
- By a decision of 1 July 2010 the Court declared the
application admissible in respect of the applicant’s complaints
concerning medical assistance after 18 January 2005 and the fairness
of the civil proceedings. The remainder of the application was
declared inadmissible.
- The
parties filed additional observations on the merits (Rule 59 § 1
of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and is serving a prison sentence in a
correctional colony in the town of Solikamsk, Perm Region (Russia).
A. Criminal proceedings against the applicant
- The
applicant was arrested on 8 February 1996 in the town of Ukhta, Komi
Republic. On 25 December 1997 the Supreme Court of the Komi
Republic convicted him of, inter alia, attempted rape and
several counts of murder, and sentenced him to death. On 22
December 1998 the Supreme Court of Russia upheld the trial judgment
in substance.
- In
1999 the President of Russia issued an act of clemency in respect of
the applicant, replacing the death penalty with life imprisonment.
Thereafter, the applicant unsuccessfully sought a supervisory review
of the conviction.
B. The applicant’s medical condition and his
complaints to national authorities
- Between February 1996 and January 2000 the applicant
was detained for various periods of time in Sosnogorsk remand centre
no. 11/2 in the Komi Republic and other detention facilities.
After his arrest the applicant was admitted to hospital because he
had frostbite on his feet. He underwent a surgical operation
resulting in the amputation of the fifth toe on his right foot and
the distal part of his left foot. In 1996 he was diagnosed with
diabetes. In December 1999 the applicant was examined in a hospital.
A group of experts concluded that he was able to work, except if it
required physical exertion; no disability status was attributed.
- In 2001 the applicant was transferred to Solikamsk
colony no. 2 in the Perm Region (“the colony”). Between
2002 and 2004 he was treated for tuberculosis. It was indicated that
he would shortly be examined to determine whether he needed dental
and ophthalmological treatment and orthopaedic footwear. In
late 2004 the applicant was treated for his diabetes, diabetic
angiopathy (the generic term for a disease of the blood vessels) and
other diseases. The doctors recommended oral medication to lower
blood glucose and a diet. The applicant received medication by
Maninil, an oral blood-glucose-lowering drug. It does not transpire
from the available medical record that any blood or urine tests were
carried out between late 2004 and late 2005 (see paragraph 13 below).
- The applicant lodged complaints in relation to the
allegedly inadequate treatment of his diabetes, unavailability of
books on diabetes, insufficient nutrition and some other matters
relating to medical care. On 3 May 2005 the Solikamsk
Penitentiary Office stated that it was not incumbent on this office
or another public authority to supply books to individual detainees;
that all relevant counselling on diabetes could be obtained from the
detainee’s doctor, and that the applicant had been examined by
a therapist on a number of occasions and received the necessary
medication, including oral medication by Maninil. Another complaint
was examined on 31 October 2005 by the Perm Region Penitentiary
Department. It rejected the applicant’s complaints, indicating
that no special or high-vitamin diet was required for prisoners
suffering from diabetes; that they were to be fed according to the
standard set by the Ministry of Justice (see paragraph 37 below);
that the applicant was given appropriate medication; and that in
December 2005 he would be able to have a medical consultation
concerning his requests for dental treatment, orthopaedic footwear
and an eyesight check-up.
- In October 2005 blood and urine tests were carried
out; the applicant also had an X-ray, which showed no anomalies. From
28 November to 8 December 2005 he was admitted to prison
hospital no. 9 to receive dental treatment. The applicant was
diagnosed with a partial maxillary and full mandibular adentia (loss
of teeth) connected to his then sub-compensated diabetes status. The
applicant also had various blood and urine tests (glucose, bilirubin,
lipoproteid, cholesterol, alanine and aspartate aminotransferase). He
was examined by specialist doctors (a surgeon, a neuropathologist and
an ophthalmologist) who recommended regular medical check-ups. The
ophthalmologist diagnosed slight myopia in both eyes and angiopathy.
The applicant also had chronic pancreatitis but was in a stable
condition. The applicant was given a dental prosthesis and
instructions on how to use it. The final recommendations in the
discharge certificate included provision of enzymes when needed, a
low carbohydrate diet, monthly blood and urine tests, as well as
exclusion of medication by Maninil.
- In May 2006 the applicant complained about chest pain
and was given medication. In June 2006 he had a check-up by a
physician, an ophthalmologist, a dentist and a surgeon. No specific
prescriptions were made. The dentist indicated that the applicant’s
oral cavity “had been sanitised”. On an unspecified date
the applicant handed over his allegedly defective dental prosthesis
to his lawyer, apparently, to have this prosthesis adjusted.
Subsequently he was examined by a radiologist and a tuberculosis
specialist. On a number of occasions he was given medication for his
headaches, hypertension and insomnia. The applicant had several
check-ups and X-rays in 2007, 2008 and 2009.
- As follows from the applicant’s medical record
compiled in colony no. 2, various blood tests were carried out
twice in 2006 (25 January and 7 August 2006); five times in
2007 (10 April, 20 June, 3 and 9 October, 10 December);
eight times in 2008 (15 January, 5 and 19 March, 9 and 16 April,
11 June, 24 October, 3 December); four times in 2009 (6 March,
24 June, 9 July and 16 December) and at least once in 2010
(February). Urine tests were carried out in January and July 2006,
October 2007, April 2008, June and December 2009, and February 2010.
- The applicant wrote to the Perm Region Ombudsman,
requesting his re-admission to prison hospital no. 9. This
letter was forwarded to the Perm Region Penitentiary Department. On
24 October 2007 the Penitentiary Department rejected the applicant’s
request as follows:
“The complaint has been examined by the medical
unit of the Penitentiary Department. Since 2001 [the applicant’s]
state of health has been monitored in the colony...In November 2005
he was examined and received treatment inter alia from a
dentist in prison hospital no. 9. He was discharged from this
hospital in a satisfactory condition and was given recommendations to
be followed within the regime of an out-patient observation. At
present, his state of health is satisfactory; the most recent
laboratory tests were carried out in October 2007. For the time
being, a consultation with a dentist was not possible because [the
applicant] did not have his dental prosthesis (which he had handed
over to his lawyer).
In-patient treatment in the prison hospital is not
necessary.”
- The applicant was examined again in August 2009 by a
medical panel composed of the governor of the prison hospital and the
head officers of the gastroenteritis and neurology units in this
hospital. The applicant’s condition was classified as
satisfactory. The medical panel confirmed the diabetes (Type 2)
diagnosis and symptoms of encephalopathy. The panel concluded that
the applicant did not require in-patient treatment in the prison
hospital and made the following recommendations:
“to carry out a glycemic profiling (thirty minutes
before eating and at 2 p.m.); to follow a low fat and carbohydrate
diet (which has been followed by the patient on his own)...and to
continue intake of Glidiab (each morning), and treatment by
vasoactive and nootropic substances.”
- The management of Ukhta colony no. 24 in the Komi
Region affirmed in a certificate dated 14 August 2009, produced
by the Government, that they could not provide the applicant with
orthopaedic footwear because it could only be manufactured in another
town and there was a long waiting list. Apparently, the applicant had
been detained in this colony in 2000 or 2001. The management of Ukhta
medical facility no. 18 stated in a certificate dated 14 August
2009, produced by the Government, that the applicant needed
orthopaedic footwear; however, the relevant regulations on supplies
to convicted detainees did not require that it be provided by the
State. The applicant had been detained in this medical facility in
1996.
- A certificate dated 17 August 2009 and issued by
Solikamsk colony no. 2 (in the Perm Region) states that during
the entire period of his detention in that detention facility the
applicant was provided with adequate medication, including
glucose-related medicines and five meals per day. The management of
the colony also stated in a certificate dated 29 July 2010,
produced by the Government, as follows:
“[The applicant] was not given a prescription for
any special diet and receives a ration in compliance with the
standards adopted for convicted detainees.”
- In August 2010 the Perm Region Penitentiary Department
issued a report in relation to the applicant’s grievances
previously raised before various national authorities and the
European Court. The report reads as follows:
“In 2001 the applicant was transferred to colony
no. 2, where on numerous occasions he underwent out-patient
examinations and treatment in relation to various diseases. He was
also admitted to prison hospital no. 9, from which he was
discharged in a satisfactory condition, provided that recovery had
been obtained for acute illnesses and that amelioration had been
observed for chronic diseases...
The medical unit of the colony has the requisite
licences for providing health care (medication, out-patient
treatment, therapy and assessment of disability). The colony has the
requisite medical staff (head of the unit, two therapists and two
medical assistants) with the necessary qualifications...
For providing consultations on diagnoses and
hospitalisation the above staff is assisted by external specialists
from hospital no. 9 or municipal or State medical
institutions...Certain types of health care (dental treatment, X-ray
imaging, laboratory testing) are carried out in the medical unit of
prison no. 1.
In 2005 [the applicant] received dental treatment and
prosthesis in prison hospital no. 9 and was discharged from it
in a satisfactory condition. The final recommendations included a low
carbohydrate diet. In 2007 he handed over the prosthesis to advocate
V., as can be seen from [the applicant’s] written statement.
After 2005 he did not request a replacement of prosthesis from the
medical unit of prison no. 2.
Food is supplied [to the applicant] in the colony in
compliance with the standards set in Decree no. 125 of 2 August
2005 by the Ministry of Justice...Since 2001 he has been receiving
five meals per day in order to impede undesired changes in the blood
glucose levels. The recommendations for a low carbohydrate diet and
low glucose have been followed [by the applicant] under monitoring by
the medical personnel in the colony.
[The applicant] has no disability status. No
recommendation for orthopaedic footwear was issued. The regime for
detainees on life sentences does not require any substantial
movement, except for outdoor exercise...
[The applicant] was and continues to be provided with
medical care in compliance with Decree no. 640/190 issued by the
Ministry of Justice and the Ministry of Health. Such medical care is
provided within the framework of the State programme concerning
provision of free medical assistance to Russian nationals.
During his detention [the applicant] was given all
requisite medical monitoring and treatment...”
- The management of Solikamsk colony no. 2 in the
Perm Region affirmed in a document dated 27 July 2011 and produced by
the Government that they had no document which indicated that the
applicant had asked them for special footwear or that it had been
recommended (see also paragraph 18 above). The Government also
submitted written statement made in August 2011 by a medical
assistant in colony no. 2, who affirmed that the applicant could
walk independently without any assistance and, in the absence of
disability status, did not need special footwear.
- According
to the applicant, he was not provided with orthopaedic footwear,
which was necessary on account of the injuries to his feet. In the
absence of such footwear, he suffered pain in his feet and could
hardly keep his balance, for instance during long routine line-ups
organised by the prison staff or when cleaning cells; his standard
footwear did not fit him properly and wore out quickly. For many
years, the applicant was kept in a cell on the ground floor of the
detention facility and had difficulty, in the absence of special
footwear, to walk up and down the stairs to/from the first and second
floors where the medical unit and the offices of the prison staff
were located.
C. Civil proceedings for compensation on account of
damage to health
- The applicant brought civil proceedings before the
Ukhtinskiy District Court of the Komi Republic (“the District
Court”) against the Ukhta Department of the Interior, the
Federal Ministry of Finance, the Prosecutor’s Office of the
Komi Republic and three detention facilities. The applicant alleged,
inter alia, that he had not been provided with the requisite
medical assistance in 1996; as a result of medical negligence, parts
of his feet had had to be amputated; and he had not been given a
special diet adapted to his diabetes in the late 1990s. His claim was
dismissed on procedural grounds on several occasions.
- In
2003 the applicant resubmitted his above claims to the District
Court. The court opened a file and sought the applicant’s
observations on the need for an expert report to be commissioned. In
September and November 2003 the applicant wrote to the District Court
giving his consent for an expert report to be commissioned and
suggested that some questions be put to the expert (see also
paragraph 28 below).
- The
applicant also wrote to the District Court asking that he be brought
to court hearings in his civil case. The court dispatched summons to
the applicant in prison. However, it issued no order for his transfer
for any hearings. On 17 and 25 December 2003 the District Court held
hearings and heard the prosecutor, the defendants and witnesses. The
applicant was neither present nor represented at these hearings.
- In
December 2003 the presiding judge asked to see the applicant’s
medical record from prison hospital VK-240/1-2 in Solikamsk.
- In April 2004 a Mr Sh. applied to Ukhta Civil Hospital
on behalf of the applicant, asking for the applicant’s medical
file, in particular in relation to the year 1996. He was informed
that the applicant’s medical record had been destroyed because
the building in which the hospital had filed it had been flooded in
June 1999.
- An expert report was commissioned and carried out on
the basis of the available material. The expert concluded that the
surgical operation in 1996 had been justified; the applicant’s
diabetes was hereditary and its treatment had been appropriate,
including Maninil; and that an adequate diet had been given to the
applicant. It was noted in this connection that type 2 diabetes
required diet no.9, which consisted in five or six servings of food
per day excluding or replacing sugar and reducing carbohydrates. A
copy of the expert report was sent to the applicant in January 2005.
According to the applicant, he never saw the documents which served
as a basis for the expert report.
- Hearings
in February and March 2005 were adjourned in the absence of any proof
that the applicant had been properly notified. On 31 March 2005
the court received a letter from the applicant in which he commented
on the expert report and also sought his own participation in the
hearing and access to the medical documents submitted by the
defendants.
- On
19 May 2005 the District Court held a hearing at which the applicant
was neither present nor represented. By a judgment of 19 May 2005,
the District Court rejected his claims. The applicant appealed. The
defendants submitted their observations in reply. On 28 July 2005 the
applicant was provided with a copy of the verbatim record of the
trial. In August 2005 he was served with a copy of the defendants’
observations.
- By
a letter of 29 August 2005 the applicant was informed that an appeal
hearing was listed for 29 September 2005 and that “his absence
would not halt the proceedings”.
- On
29 September 2005 the Supreme Court of the Komi Republic heard the
representative of the Regional Prosecutor’s Office. The
applicant was neither present nor represented at the appeal hearing.
At the closure of this hearing the Supreme Court upheld the
first-instance judgment. In October 2005 the applicant received a
copy of the appeal decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Medical assistance in detention facilities
- Russian law gives detailed guidelines for the
provision of medical assistance to detained individuals. These
guidelines, found in joint Decree no. 640/190 of the Ministry of
Health and Social Development and the Ministry of Justice, on
Organisation of Medical Assistance to Individuals Serving Sentences
or Detained (“the Regulation”), enacted on
17 October 2005, are applicable to all detainees without
exception. In particular, section III of the Regulation sets out the
procedure for initial steps to be taken by medical personnel of a
detention facility on admission of a detainee. On arrival at a
temporary detention facility all detainees must be subjected to
preliminary medical examination before they are placed in cells
shared by other inmates. The examination is performed with the aim of
identifying individuals suffering from contagious diseases or in need
of urgent medical assistance. No later than three days after the
detainee’s arrival at the detention facility, he should receive
a medical examination, including fluorography. During the in-depth
examination a prison doctor should record the detainee’s
complaints, study his medical and personal history, record injuries
if present, and recent tattoos, and schedule additional medical
procedures if necessary. A prison doctor should also authorise
laboratory analyses to identify sexually transmitted diseases, HIV,
tuberculosis and other illnesses.
- Subsequent
medical examinations of detainees are performed at least twice a year
or at detainees’ request. If a detainee’s state of health
has deteriorated, medical examinations and assistance should be
provided by medical personnel of the detention facility. In such
cases a medical examination should include a general medical check-up
and additional methods of testing, if necessary, with the
participation of particular medical specialists. The results of the
examinations should be recorded in the detainee’s medical
history. The detainee should be fully informed of the results of the
medical examinations.
- Section
III of the Regulation also sets the procedure for cases of refusals
by detainees to undergo medical examination or treatment. In each
case of refusal, a corresponding entry should be made in the
detainees’ medical record. A prison doctor should fully explain
to the detainee the consequences of his refusal to undergo the
medical procedure.
- Detainees
take prescribed medicines in the presence of a doctor. In a limited
number of cases the head of the medical department of the detention
facility may authorise his medical personnel to hand over a daily
dose of medicines to the detainee for unobserved intake.
- Until 2 August 2005 food supplies for detainees were
regulated by Decree no. 136 of 4 May 2001 of the Federal
Ministry of Justice. Since 2 August 2005 they have been
regulated by Decree no. 125. Neither decree has provided for any
specific diet for detainees suffering from diabetes.
- On 11 December 2007 the Federal Ministry of Health
issued a standard protocol for out-patient treatment of persons
suffering from non-insulin-dependent diabetes. The protocol
recommends, inter alia, a yearly provision of thirty-six
glucose (laboratory) tests and/or for one hundred and eighty glucose
meter tests.
B. Civil court proceedings
- The Code of Civil Procedure of the Russian Federation
(“the CCP”) provides that individuals may appear before a
court in person or act through a representative (Article 48 §
1). A court may appoint a lawyer to represent a defendant whose place
of residence is not known (Article 50). The Advocates Act (Law no.
63-FZ of 31 May 2002) provides that free legal assistance may be
provided to indigent plaintiffs in court proceedings in civil
disputes concerning alimony or pension payments or claims for
compensation for employment-related health damage (section 26 §
1). In 2005 the Russian Government launched a test project in a
number of regions concerning provision of free legal assistance in
civil law matters (Decree no. 534 of 22 August 2005).
- Articles 57 and 149 of the CCP provide that parties
may seek a court’s assistance in obtaining evidence. The
relevant party should indicate the circumstances impeding access to
such evidence and its relevance to the case, as well as the location
from where such evidence should be collected. An unjustified failure
to comply with the court order could lead to the person or official
in possession of the relevant evidence being fined.
- In a given civil case a civil court could ask a court
in another location to carry out specific actions in relation to the
evidence situated in that location (Article 62 of the CCP). This
request is mandatory and has to be carried out within one month from
its receipt.
- Under Articles 58 and 184 of the CCP, a court may hold
a session outside the court-house if, for instance, it is necessary
to examine evidence which cannot be brought to the court-house.
- As
follows from Ruling no. 2 of 10 February 2009 by the Plenary
Supreme Court of Russia, complaints brought by detainees in relation
to the inappropriate conditions of detention (for instance, a lack of
adequate medical assistance) should be examined by a court under the
procedure prescribed by Chapter 25 of the CCP. The latter provides
that a person may bring court proceedings if an action or omission by
a public authority or official violated this person’s rights or
freedoms, impeded their exercise or unlawfully imposed an obligation
or liability (Articles 254 and 255 of the CCP). Such court action
should be lodged within three months of the date when the person
learnt about the violation of his or her rights or freedoms (Article
256). If a court considers that the complaint is justified, the court
orders the respondent authority or official to remedy the violation
(Article 258).
C. Other relevant legislation and practice
- The Penitentiary Code provides that convicted persons
may be transferred from a correctional colony to an investigative
unit if their participation is required as witnesses, victims or
suspects in connection with certain investigative measures (Article
77.1). A convicted person may consult his or her lawyer (Articles 12
and 89).
- On several occasions the Constitutional Court examined
complaints by convicted persons whose requests for leave to appear in
civil proceedings had been refused by courts. It has consistently
declared the complaints inadmissible, finding that the contested
provisions of the Code of Civil Procedure and the Penitentiary Code
did not, as such, restrict the convicted person’s access to
court. It has emphasised, nonetheless, that the convicted person
should be able to make submissions to the civil court, either through
a representative or in any other way provided by law. If necessary,
the hearing may be held at the location where the convicted person is
serving the sentence, or the court in which the case is being heard
may instruct the court having territorial jurisdiction over the
correctional colony to obtain the applicant’s submissions or
take any other procedural action (decisions no. 478-O of 16 October
2003, no. 335-O of 14 October 2004 and no. 94-O of 21 February
2008).
- The
Code of Civil Procedure, as interpreted by the Constitutional Court
in its ruling no. 4-П of 26
February 2010, allows for a reopening of the domestic civil
proceedings on the basis of a European Court judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged that he had not been provided with proper medical
assistance in detention. He referred to Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Court reiterates at the outset that by a decision of 1 July 2010 it
declared the application admissible in respect of the applicant’s
complaints concerning medical assistance after 18 January 2005. The
remainder of the complaints under Article 3 of the Convention was
declared inadmissible (see paragraph 5 above).
A. The parties’ submissions
- The
applicant alleged that he had not been provided with a “special”
diet, which was an indispensable part of his diabetes treatment. The
domestic regulations did not make any provision for such a diet. The
prescribed medication was not effective and was, at times, out of
date. The detention facilities were not equipped with glucose meters,
while ordinary laboratory blood tests, which were carried out once
every four months, were manifestly inadequate and irregular. Owing to
inadequate medical treatment and monitoring, the applicant
experienced dramatic changes in blood glucose levels. Moreover, the
dentures provided in 2005 had become unfit for purpose on account of
loss of teeth. The applicant argued that the dentists in the
detention facilities in which he was being detained had no equipment
which would allow for implants to be fixed in his mouth. The absence
of the appropriate denture and diet could lead to various problems
for his digestive system. He also had progressive hearing and sight
loss. He was not provided with orthopaedic footwear, which was
necessary on account of the injuries to his feet. In the absence of
such footwear, he suffered pain in his feet and could hardly keep his
balance, for instance during long routine line-ups organised by the
prison staff or when cleaning cells; his standard footwear did not
fit him properly and wore out quickly. He could not obtain any
documentary proof concerning the need for such footwear.
- With reference to various reports and medical evidence
(see paragraphs 12, 16-20 and 28 above), the Government argued that
the applicant had been, and continued to be, provided with all
necessary medical assistance. During his detention in colony no. 2
he received a low fat and carbohydrate diet, regular blood tests and
medicines for lowering the glucose level. The ration provided to the
detainees in the colony was compatible with the requirements set for
persons suffering from diabetes. Moreover, since 2001 the applicant
was allowed to receive five meals per day to exclude undesired
changes in the glucose level. In 2005 he had been treated in a
hospital. Thereafter, he had not lodged any claim for dental
treatment, including provision of dentures. In 1999 he had been
refused disability status and thus needed no special footwear. In any
event, as he is serving a life sentence he has no particular need for
mobility, except for outdoor exercise in the prison yard.
B. The Court’s assessment
1. General principles
- The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of a democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment (see Labita v. Italy [GC], no. 26772/95, §
119, ECHR 2000-IV). However, ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this minimum depends on the circumstances of the case,
such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the
victim (see, among other authorities, Ireland v. the United
Kingdom, 18 January 1978, § 162, Series A no. 25).
- Ill-treatment
that attains such a minimum level of severity usually involves actual
bodily injury or intense physical or mental suffering. However, even
in the absence of these, where treatment humiliates or debases an
individual, showing a lack of respect for or diminishing his or her
human dignity, or arouses feelings of fear, anguish or inferiority
capable of breaking an individual’s moral and physical
resistance, it may be characterised as degrading and also fall within
the prohibition of Article 3 (see Pretty v. the United Kingdom,
no. 2346/02, § 52, ECHR 2002-III, with further references).
- In
the context of deprivation of liberty the Court has consistently
stressed that, to fall under Article 3, the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering and humiliation connected with detention (see, mutatis
mutandis, Tyrer v. the United Kingdom, 25 April 1978,
§ 30, Series A no. 26, and Soering v. the United
Kingdom, 7 July 1989, § 100, Series A no. 161).
- Furthermore, the Court reiterates that allegations of
ill-treatment should be supported by appropriate evidence. In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, cited above, § 161). However, such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of
fact. Convention proceedings do not in all cases lend themselves
to a rigorous application of the principle affirmanti incumbit
probatio (he who alleges something must prove that allegation),
as in certain instances the respondent Government alone have access
to information capable of corroborating or refuting allegations.
Failure on a Government’s part to submit such information
without a satisfactory explanation may give rise to the drawing of
inferences as to the well-foundedness of the applicant’s
allegations (see, in various contexts, D.H. and Others v. the
Czech Republic [GC], no. 57325/00, § 179, ECHR 2007 IV;
Ahmet Özkan and Others v. Turkey, no. 21689/93, §
426, 6 April 2004; Aleksandr Leonidovich Ivanov v. Russia,
no. 33929/03, §§ 27-35, 23 September 2010, and Boris
Popov v. Russia, no. 23284/04, §§ 65-67, 28
October 2010).
- Regarding
the issue of medical care in detention facilities, the Court
reiterates that under Article 3 of the Convention the State must
ensure that a person is detained in conditions which are compatible
with respect for his human dignity, that the manner and method of the
execution of the measure do not subject him to distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent
in detention and that, given the practical demands of imprisonment,
his health and well-being are adequately ensured by, among other
things, providing him with the requisite medical assistance (see
Kudła v. Poland [GC], no. 30210/96, § 94, ECHR
2000 XI).
- Where
complaints are made about a failure to provide requisite medical
assistance in detention, it is not indispensable for such a failure
to lead to any medical emergency or otherwise cause severe or
prolonged pain in order to find that a detainee was subjected to
treatment incompatible with the guarantees of Article 3 (see Ashot
Harutyunyan v. Armenia, no. 34334/04, § 114, 15 June
2010). The fact that a detainee needed and requested such assistance
but it was unavailable to him may, in certain circumstances, suffice
to reach a conclusion that such treatment was in breach of that
Article (ibid).
- Thus,
although Article 3 cannot be interpreted as laying down a general
obligation to release a detainee on health grounds save for
exceptional cases (see Papon v. France (no. 1) (dec.),
no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.),
no. 48799/99, 5 April 2001), a lack of appropriate medical
treatment may raise an issue under Article 3, even if the
applicant’s state of health does not require his immediate
release.
- The
national authorities must ensure that diagnosis and care in detention
facilities, including prison hospitals, are prompt and accurate, and
that where necessitated by the nature of a medical condition,
supervision is regular and involves a comprehensive therapeutic
strategy aimed at ensuring the detainee’s recovery or at least
preventing his or her condition from worsening (see Pitalev v.
Russia, no. 34393/03, § 54, 30 July 2009, with further
references).
- On
the whole, while taking into consideration “the practical
demands of imprisonment” the Court reserves sufficient
flexibility in deciding, on a case-by-case basis, whether any
deficiencies in medical care were “compatible with the human
dignity” of a detainee (see Aleksanyan v. Russia,
no. 46468/06, § 140, 22 December 2008). In its assessment
the Court gives a thorough scrutiny to the question concerning the
compliance with recommendations and prescriptions issued by medical
professionals, in the light of specific allegations made by the
applicant.
2. Application of the principles in the present case
- In
this case, the Court should determine whether during the relevant
period of detention the applicant needed regular medical care,
whether he was deprived of it as he claims, and if so whether this
amounted to inhuman and/or degrading treatment contrary to
Article 3 of the Convention (see Farbtuhs v. Latvia,
no. 4672/02, § 53, 2 December 2004, and Sarban
v. Moldova, no. 3456/05, § 78, 4 October
2005).
- The applicant’s major grievances in the present
case may be summarised as follows: (i) lack of a special diet
commensurate with his diabetes status, aggravated by the alleged
inefficiency of the medication regime and the lack of regular and
adequate tests; (ii) the alleged deficiency of the dentures; (iii) a
deterioration of his eyesight and hearing and possible new health
problems, in particular of the digestive system; and (iv) lack of
orthopaedic footwear. As already indicated, the above grievances
essentially concern the period of the applicant’s detention
since 2005.
- The
applicant was diagnosed with diabetes in 1996. The Court is unable to
conclude on the basis of the available information and submissions
that the method used for diabetes-related laboratory tests (as
compared to glucose meters) was in itself incompatible with the
applicant’s medical condition. The Court also observes that the
applicant made a general statement concerning the unsatisfactory
frequency of the tests. He did not clearly substantiate, with
reference to medical data and prescriptions, that the omission to
carry out such tests at specific intervals affected his state of
health.
- The
Court also reiterates that unavailability of medicines may raise an
issue under Article 3 if it has negative effects on the applicant’s
state of health or causes suffering of a certain intensity (see
Mirilashvili v. Russia (dec.) no. 6293/04, 10 July
2007). The applicant was given an oral blood-glucose-lowering drug.
As can be seen from a discharge certificated issued in December 2005,
the applicant was given a recommendation of exclusion of medication
by this drug. It appears that he was later on given a prescription
for other drugs (see paragraph 17 above). Having examined the
available materials, including the applicant’s medical record
for 2005 and the expert reports issued in 2004, 2009 and 2010 (see
paragraphs 17, 20 and 28 above), and in the absence of any
alternative evidence, the Court considers that no violation of
Article 3 of the Convention has been convincingly established on that
account (see, for comparison, Polufakin and Chernyshev v. Russia,
no. 30997/02, § 169, 25 September 2008). The
applicant’s allegation that the medication did not produce the
desired effect does not suffice to raise an issue under Article 3 of
the Convention.
- As
to the diet, it is common ground between the parties that the
applicant was given a recommendation of a low fat and carbohydrate
diet and that he was allowed to receive five meals per day in order
to exclude undesired changes in the glucose level (see paragraphs 17
and 28 above). In the Government’s submission, the applicant
himself moderated his consumption of certain foodstuffs. It has
not been alleged that the applicant was refused counselling on the
appropriate diet to be observed. In any event, it has not been shown
that the ration provided to all detainees in the colony, including
the applicant, was incompatible with the applicant’s diabetes
status. While the Court notes that the efficiency of diabetes
treatment depends on the combination of factors such as an adapted
diet, medication and monitoring, no sufficient elements were provided
in the present case to enable the Court to doubt the appropriateness
of the nutrition afforded to the applicant in detention.
- As
to the dental treatment, the respondent Government appear to deny
that since 2005 onward the applicant was faced with any difficulties
in relation to his dentures or footwear. The Court observes that the
applicant received dental treatment in 2005 and was given a dental
prosthesis (see, by contrast, V.D. v. Romania, no. 7078/02,
§§ 95-98, 16 February 2010). It appears that he could
not, however, use it because of the progressive retraction of the
gums. For unspecified reasons, the applicant handed over the denture
to another person (this seems to have been his lawyer). It is
unclear from the applicant’s summary submissions what specific
requests were made by the applicant after 2005 in that connection or
whether it was at all practicable to provide any replacement of
dentures, given the applicant’s state of health at the time.
- The
Court recognises that detained applicants may have difficulties in
collecting evidence to substantiate, both at the national level and
before this Court, their grievances relating to previous or ongoing
deficiencies in medical care in detention. This is especially so when
such grievances involve complex medical issues. However, the
applicant underwent annual check-ups and his grievances at the
national level were assessed and dismissed as unfounded on several
occasions between 2005 and 2010 (see paragraphs 12, 14, 16, 17, 20
and 28 above). The Court has found no reason to disagree with these
assessments. Therefore, as regards the grievances mentioned under
(i)-(iii) in paragraph 61 above, the Court concludes that the
applicant, who was represented before this Court by a lawyer, did not
provide sufficient and convincing arguments disclosing that any
allegedly serious failings on the part of the national authorities in
complying with medical recommendations and prescriptions were such as
to violate the requirements of Article 3 of the Convention.
- Nevertheless,
as regards the grievance concerning orthopaedic footwear, the Court
reiterates that since 1996 the applicant had a toe on his right foot
and the distal part of his left foot amputated (see paragraph 10
above). Relying on the 1999 refusal of disability status and the
conclusions reached by the prison authorities in the Perm Region (see
paragraphs 10, 20 and 21 above), the respondent Government stated
that no prescription of special footwear had been issued to the
applicant.
- While
taking note of the Government’s argument, the Court cannot but
observe that the management of a medical facility in the Komi region
stated that the applicant needed orthopaedic footwear; however, the
relevant regulations on supplies to convicted detainees did not
require that it be provided by the State (see paragraph 18 above).
The Ukhta colony management (in the same region) made a different
statement, considering that orthopaedic footwear was not readily
available to the applicant (ibid). While these statements relate to
the periods of the applicant’s detention in these facilities
between 1996 and 2001, there is no indication that his medical
condition in this respect has improved significantly or that it was
properly (re)assessed in or after 2005 during his detention in the
Perm region, where he has been serving the sentence of life
imprisonment. Thus, it was incumbent on the national authorities to
react to the applicant’s situation of which they were aware
(see paragraphs 11 and 12 above).
- Therefore,
the Court considers that the lack of any appropriate solution in the
above matter between 2005 and 2011 was such as to amount to degrading
treatment in breach of Article 3 of the Convention. In the Court’s
view, the applicant has been subjected to distress and hardship
exceeding the unavoidable level of suffering inherent in detention
and due to his handicap. While taking note of the practical demands
of imprisonment, the Court concludes that in this respect the
applicant’s health and well-being have not been adequately
ensured.
- There
has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the civil proceedings had been unfair. He
alleged in particular that the principle of the equality of arms had
not been respected in that he had not been afforded an opportunity to
be present at the hearings. The Court will examine this complaint
under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. The parties’ submissions
- The applicant submitted that since his claim was based
on various aspects of his personal experience (such as medication and
treatment, lack or presence of certain documents) his personal
testimony before the civil court was the decisive, if not the main,
tool for ensuring the equality of arms. The above-mentioned
consideration acquired even more importance, given the unavailability
of the applicant’s medical file and the prosecutor’s
participation in the proceedings. Neither the Code of Civil
Procedure nor the Code of Criminal Procedure contained any explicit
provision which made it possible for detainees to participate in
civil court proceedings. No such provision was present in the Code of
Execution of Sentences. The applicant also submitted that he had no
means to retain counsel. He was not entitled to free legal advice
under the Advocates Act or any other statute.
- In
the Government’s submission, the Code of Execution of Sentences
implicitly authorises a court to require a detainee’s presence
at a court hearing if required by the interests of justice and for
the protection of individual rights. The Government concluded that
neither the letter nor the spirit of Article 77.1 of the
above-mentioned Code or the Code of Criminal Procedure precluded the
hearing of a detainee in person in civil cases. The Government
further argued that the fairness of the proceedings, including the
principle of equality of arms, had been respected in the applicant’s
civil case. He had been properly notified of the hearings, had made a
written deposition at the court’s request, had been afforded an
opportunity to suggest questions to be put to a medical expert and
had been provided with a copy of the trial verbatim record, as well
as the defendants’ appeal observations. The first-instance
court received and examined the applicant’s requests, as well
as his comments on the other parties’ submissions and the
expert report. In addition, a convicted detainee could present his
arguments to a court by way of a video link or in writing, which
would be sufficient.
- The
Government submitted that a detainee had the opportunity to seek
legal advice, for a fee, from a bar association or a law firm. A
lawyer or other persons could be authorised to visit a convicted
detainee, including for a legal consultation. The applicant had not
however requested any such meetings. While the national legislation
did not require provision of free legal assistance in civil court
proceedings, the applicant’s reference to lack of financial
means should not have prevented him from seeking legal advice, which
would have been readily available free of charge in cases concerning
damage to health under the Advocates Act. Lastly, the prosecutor
acted as a respondent in the civil case. In view of the above, the
applicant had not been put at any significant disadvantage vis-à-vis
the other parties.
B. The Court’s assessment
1. General principles
- The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which are elements of the broader concept of a fair
hearing, requires that each party be given a reasonable opportunity
to have knowledge of and comment on the observations made or evidence
adduced by the other party and to present his case under conditions
that do not place him or her at a substantial disadvantage vis-à-vis
his or her opponent (see Krčmář and Others v. the
Czech Republic, no. 35376/97, § 39, 3 March 2000,
and Dombo Beheer B.V. v. the Netherlands, 27 October 1993,
§ 33, Series A no. 274).
- Article
6 of the Convention does not expressly provide for a right to be
heard in person; rather, it is implicit in the more general notion of
a fair trial that a criminal trial should take place in the presence
of the accused (see Colozza v. Italy, 12 February 1985, §
27, Series A no. 89). However, in respect of non-criminal matters
there is no absolute right to be present at one’s trial, except
in respect of a limited category of cases, such as those where the
personal character and manner of life of the person concerned is
directly relevant to the subject matter of the case, or where the
decision involves the person’s conduct (see, among others,
Kabwe and Chungu v. the United Kingdom (dec.), nos. 29647/08
and 33269/08, 2 February 2010).
- A
party’s presence at the trial is closely linked to the right to
an oral and public hearing, since if Article 6 does not require an
oral hearing there is, by extension, no right to be present. An oral
and public hearing constitutes a fundamental principle enshrined in
Article 6 § 1 (see Jussila v. Finland [GC], no.
73053/01, §§ 40-42, ECHR 2006-XIII). There may be
proceedings in which an oral hearing may not be required: for example
where there are no issues of credibility or contested issues which
necessitate a hearing and the courts may fairly and reasonably decide
the case on the basis of the parties’ submissions and other
written materials (see, among others, Vilho Eskelinen and Others
v. Finland [GC], no. 63235/00, § 74, ECHR 2007 IV).
- The
Court has further acknowledged that the national authorities may have
regard to the demands of efficiency and economy and has found, for
example, that the systematic holding of hearings could be an obstacle
to the particular diligence required in social security cases and
ultimately prevent compliance with the reasonable-time requirement of
Article 6 § 1 (see Schuler-Zgraggen v. Switzerland,
judgment of 24 June 1993, § 58, Series A no. 263,
with further references). Although the earlier cases emphasised that
a hearing must be held before a court of first and only instance
unless there were exceptional circumstances that justified dispensing
with one (see, for instance, Håkansson and Sturesson
v. Sweden, cited above, § 64; Fredin v. Sweden
(no. 2), judgment of 23 February 1994, §§ 21
and 22, Series A no. 283-A; and Allan Jacobsson
v. Sweden (no. 2) judgment of 19 February 1998,
§ 46, Reports 1998-I), the Court has clarified
that the character of the circumstances that may justify dispensing
with an oral hearing essentially comes down to the nature of the
issues to be decided by the national court, not to the frequency of
such situations. It does not mean that refusing to hold an oral
hearing may be justified only in rare cases (see Miller v. Sweden,
no. 55853/00, § 29, 8 February 2005). The
overarching principle of fairness embodied in Article 6 is the key
consideration.
- The
Court has previously found violations of Article 6 of the Convention
in cases where Russian courts, after having refused leave to appear
to detainees who had wished to make oral submissions on civil claims,
failed to consider other legal avenues for the securing of their
effective participation in the proceedings (see Khuzhin
and Others v. Russia,
no. 13470/02, §§ 53 et seq., 23 October 2008; see
also Mokhov v. Russia, no. 28245/04, §§
45-51, 4 March 2010; and Larin v. Russia, no. 15034/02, §
35 et seq., 20 May 2010). For instance,
the Court has found a violation of Article 6 in a case where a
Russian court refused leave to appear to a detainee who had wished to
make oral submissions on his claim that he had been ill-treated by
the police. Despite the fact that the applicant in that case was
represented by his wife, the Court considered it relevant that his
claim was largely based on his personal experience and that his
submissions would therefore have been an important part of the
plaintiff’s presentation of the case (see Kovalev v. Russia,
no. 78145/01, § 37, 10 May 2007).
- The
Court further reiterates that the right of access to court does not
necessarily entail a right to legal assistance in non-criminal
matters. Only where a party would not receive a fair hearing without
the provision of legal aid, with reference to all the facts and
circumstances of the case, will Article 6 require legal aid,
including legal representation or assistance (see Steel and
Morris v. the United Kingdom, no. 68416/01, § 61, ECHR
2005 II).
2. Application of the above principles in the present
case
- Turning to the circumstances of the case, the Court
observes at the outset that the applicant brought proceedings against
the Ukhta Department of the Interior and several other public
authorities before the Ukhtinskiy District Court of the Komi Republic
(see paragraph 23 above). At the time of this court action the
applicant was serving a prison term in another region of Russia. In
addition, it is noted that the representatives of the State
authorities, including a public prosecutor, were present at the
hearings in December 2003 and made oral submissions to the
first-instance court. A representative of the regional prosecutor’s
office was present at the appeal hearing.
- The
applicant’s grievance before the Court was based on his wish to
be present at the civil hearings, arguing, among other things, that
he did not have the means to pay for a lawyer (see paragraph 72
above).
- The
domestic courts refused the applicant leave to appear, relying on the
absence of any legal norm allowing his presence. The Court observes
that the Russian legislation provided for a party’s right to an
oral hearing (see, by contrast, Súsanna Rós Westlund
v. Iceland, no. 42628/04, § 41, 6 December 2007,
and Gülmez v. Turkey, no. 16330/02, § 37,
20 May 2008). This legislation, however, did not make any
explicit provision for detainees to be brought to the court-house in
civil proceedings, if necessary in the circumstances of the case. The
legislative gap absolved the civil judges from considering any
security issues relating to transporting the convicted prisoner
outside the territory of the detention facility.
- Bearing
in mind that there could be practical difficulties in ensuring the
applicant’s own presence at the civil hearing before the
Ukhtinskiy District Court (see paragraph 81 above), the Court
reiterates that Article 6 of the Convention does not guarantee the
right to be heard in person at a civil court, but rather a more
general right to present one’s case effectively before the
court and to enjoy equality of arms with the opposing side. Article 6
§ 1 leaves to the State a free choice of the means to be used in
guaranteeing litigants these rights (see Steel and Morris,
cited above, §§ 59 and 60). For instance, as a way of
securing the applicant’s participation in the proceedings, the
national authorities could have held a session by way of a video link
or in the detention facility, in so far as it was possible under the
rules on court jurisdiction (see paragraph 42 above, and, for the
relevant principles, Riepan v. Austria, no. 35115/97,
§§ 27-42, ECHR 2000 XII, and Marcello Viola v.
Italy, no. 45106/04, § 49 et seq., ECHR 2006 XI
(extracts)). However, these options were not considered.
- The Court considers, despite the Government’s
argument, that the option of legal aid was not available to the
applicant in his civil case (see paragraph 39 above). The Court is
not satisfied on the basis of the available information that the
Russian legal aid system could offer the applicant sufficient
protection of his rights (see, for comparison, Staroszczyk
v. Poland, no. 59519/00, § 129, 22 March
2007, and Larin, cited above, §§ 53-55).
- The
only possibility for the applicant was to appoint a relative, friend
or acquaintance to represent him in the proceedings. However, as is
clear from the domestic courts’ judgments, after the courts had
refused the applicant leave to appear they did not consider how to
secure his effective participation in the proceedings. They did not
inquire whether the applicant was able to designate a representative
and in particular whether, having regard to the time which he had
already spent in detention, he (still) had a person willing to
represent him before the domestic courts and, if so, whether he had
been able to contact that person and give him authority to act (see
paragraph 27 above).
- At
the same time, the Court observes that the first-instance court was
not passive. It sought and obtained certain medical documents and
commissioned an expert opinion on the basis of those documents. It is
also noted that Russian law afforded the applicant the opportunity to
seek a domestic court’s assistance in obtaining the necessary
evidence in support of his claim, if such evidence was not readily
accessible (see paragraph 40 above, and Trapeznikova v. Russia,
no. 21539/02, § 101, 11 December 2008). Also, a
civil court could request a court in another location to carry out
specific actions in relation to the evidence situated in that
location (see paragraph 41 above).
- This
being so, the Court does not lose sight of the fact that in the
present case the applicant’s claims in the domestic proceedings
were, to a certain extent, based on his personal experience. It could
have served, inter alia, as a basis for assessment of the
damage which his detention entailed for him in terms of distress and
anxiety.
- Bearing
in mind the unavailability of legal assistance or representation and
considering that the applicant’s testimony describing the
conditions of his arrest and subsequent admission to hospital and the
detention facility, of which the applicant had first-hand knowledge,
would have constituted an indispensable part of the plaintiff’s
presentation of the case (see Kovalev, cited above, § 37,
and, by contrast, Kozlov v. Russia, no. 30782/03,
17 September 2009, the latter concerning a claim for title to
reside in a certain flat), the Court concludes that the domestic
proceedings did not satisfy the requirements of Article 6 § 1 of
the Convention.
- There
has been a violation of that provision in the present case.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage. He also claimed EUR 406,975 in respect of pecuniary damage,
including lost profits.
- The
Government contested the claims as excessive and unsupported by any
evidence.
- Having
regard to the nature of the violations found and making an assessment
on an equitable basis, the Court awards the applicant EUR 9,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable. The Court rejects the remaining claims as unsubstantiated
and unrelated to the Court’s findings.
B. Costs and expenses
- The
applicant also claimed EUR 14,000 for costs and expenses incurred in
the criminal proceedings at the national level and EUR 125 for those
incurred before the Court.
- The
Government contested the claims.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court notes that that the applicant was
granted legal aid and considers that this award covers the
reimbursement of the costs and expenses incurred. Therefore, regard
being had to the documents in its possession and the above criteria,
the Court rejects the claim for costs and expenses as
unsubstantiated.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Holds that there has been a violation of Article
3 of the Convention on account of the issue of orthopaedic footwear;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 9,000 (nine
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
