KLIMOV v. RUSSIA - 54436/14 [2016] ECHR 809 (04 October 2016)

In the case of Klimov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 6 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 54436/14) 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 Pavlovich Klimov (“the applicant”), on 23 July 2014. Following the applicant’s death on 8 April 2015, his sister, Ms Antonina Pavlovna Artemyeva, informed the Court of her wish to pursue the application on her late brother’s behalf.

2. The applicant and later Ms Artemyeva were represented by Ms I. Khrunova, a lawyer practising in Kazan. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant alleged, in particular, that he had not received adequate medical assistance in detention.

4. On 5 August 2014 the Court asked the Government to provide factual information, under Rule 54 § 2 (a) of the Rules of Court.

5. On 12 November 2014 the President of the Section, acting upon the applicant’s request and the factual information received from the parties, decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should be immediately examined by medical experts independent from the prison system, including by an oncologist, with a view to determining (a) whether the treatment he was receiving in detention was adequate (appropriate) to his condition; (b) whether his state of health was compatible with the conditions of his detention; and (c) whether his condition required his admittance to a specialist hospital or release.

6. On 4 March 2015 the application was communicated to the Government. Among other matters, the Court asked the Government whether their response to the Court’s decision of 12 November 2014 to impose an interim measure under Rule 39 of the Rules of Court could entail a breach of Article 34 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1967 and lived before his arrest in the town of Yoshkar-Ola in the Mariy El Republic.

A. The applicant’s state of health

8. In 2010 the applicant was convicted of murder, possessing firearms and aggravated robbery. He was sentenced to fifteen years’ imprisonment.

9. In April 2012 he was diagnosed with cancer of the left kidney. According to a medical certificate, on 25 July 2012 he underwent ablation in the prison hospital. A month later he was discharged and transferred to a correctional colony, despite complaining of deteriorating health.

10. On 18 December 2012 a pulmonary fluorography revealed that the applicant had “suspected nidal shadows (in the middle zones) on the right and left sides”. An MRI performed a month later confirmed that he had metastases in the lungs.

11. On 6 March 2013 a medical panel diagnosed him with “stage 3 cancer” of the left kidney (stage 4 is the final in the development of cancer).

12. On 28 March 2013 the applicant was examined by another medical panel. The diagnosis included stage 4 cancer of the left kidney and multiple metastases in the lungs, as well as various secondary illnesses of the cardiovascular and digestive systems. The panel concluded that the applicant was eligible for early release as he suffered from a condition included in the list of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation of 6 February 2004.

13. A month later the Ingondinskiy District Court ordered the applicant’s release, finding that his condition was “serious enough” to warrant his discharge. The decision was quashed upon an appeal by a prosecutor and the matter was sent back to the District Court for re-examination.

14. On 24 July 2013 the District Court rejected a request by the applicant for release, citing the panel’s report of 6 March 2013 and, in particular, the fact that he had been diagnosed with stage 3 cancer, which was not included in the list of illnesses. At the same time, the District Court dismissed the findings made by another medical panel on 28 March 2013, considering that examination to have been “unlawfully conducted”. It also noted that the “applicant’s behaviour did not show his determination to get on the road to recovery”.

15. On 21 November 2013 the District Court dismissed another request for early release by the applicant. Accepting that he suffered from stage 4 cancer, the court nevertheless held as follows:

“... [the applicant] is a particular danger to society, his improvement level is negligible, and according to the [colony] administration he has not got on the road to recovery. [The applicant] regularly receives symptomatic treatment and, in view of the specifics of his disease, does not need another kind of treatment.”

The decision of 21 November 2013 was appealed against and became final on 14 May 2014.

16. The applicant’s lawyer sought the opinion of an independent expert from the Blokhin Cancer Research Centre of the Russian Academy of Sciences. On 22 April 2014 three of its specialists prepared a reply, stressing that appropriate treatment could prolong the life expectancy of those suffering from stage 4 cancer for up to thirty months and that there were grounds to believe that the applicant needed specific antitumour treatment.

17. In May and June 2014 Ms Artemyeva unsuccessfully applied to have the applicant transferred from the correctional colony, where no anti-cancer treatment was available, to the prison hospital.

18. On 2 July 2014 a new medical panel diagnosed him with stage 3 kidney cancer with growing multiple lung metastases and metastases in the mediastinal lymph nodes. The panel’s findings also referred to the results of a computer tomography, which had revealed tuberculomas in the left lung.

19. In August 2014 the applicant’s lawyer lodged a complaint against the administration of the correctional colony, alleging that they had failed to provide her client with adequate medical care. She requested that the court authorise the applicant’s transfer to the prison hospital.

20. On 1 October 2014 the District Court dismissed the complaint, but granted the transfer request. Relying on statements by a representative of the applicant’s correctional colony and Ms Artemyeva, the court found that the applicant was not receiving anti-cancer treatment in the colony as such treatment had to be prescribed by an oncologist. The colony medical unit did not employ this type of specialist.

21. On 20 October 2014 an independent forensic expert studied the applicant’s medical file at the request of his lawyer, and concluded that since the end of 2012 his condition had called for tumour immunotherapy. The expert also noted that since August 2012 his treatment had been merely symptomatic and that his drug regimen was limited to painkillers.

B. Rule 39 request and subsequent developments

22. At the end of July 2014 the applicant asked the Court to apply Rule 39 of the Rules of Court and to indicate to the Russian authorities that he should be provided with the necessary medical care or released from prison on health grounds.

23. On 5 August 2014 the Government were requested under Rule 54 § 2 (a) of the Rules of Court to submit information about the applicant’s health, the quality of the medical assistance he was receiving and the conditions of his detention.

24. On 15 September 2014 the Government responded, providing the Court with the applicant’s entire medical file. In addition, in merely a few lines, they stressed that:

(a) the applicant was undergoing treatment in the prison hospital;

(b) his health was satisfactory and “nothing was life-threatening”;

(c) the medical care was afforded to him “in full”, was “appropriate” to his condition and complied both with the requirements of Russian law and the guarantees of Article 3 of the Convention; and

(d) his illnesses were not included in the list of illnesses precluding the serving of sentences in correctional institutions.

25. The applicant responded in November 2014, maintaining his claims of absent or sporadic medical assistance. He again relied on the conclusions of the forensic medical expert made on 20 October 2014.

26. Following receipt of the Government’s submissions and the applicant’s comments on them, on 12 November 2014 the Acting President of the Section decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should be immediately examined by medical experts independent from the penal system, including by an oncologist, with a view to determining (a) whether the treatment he was receiving in detention was adequate to his condition; (b) whether his current state of health was compatible with detention in a correctional colony or prison hospital; and (c) whether his current condition required his admittance to a specialist hospital or release. The Government were also asked to ensure his immediate transfer to a specialist hospital if the medical experts concluded that such admittance was required.

27. The Court wrote to the Government on 13 November 2014. On 4 December 2014 the Government responded, submitting various documents.

(i) A typed copy of the applicant’s medical history drawn up between September and November 2014, which contained a detailed schedule showing his daily intake of drugs. It appears from that document that he received basic analgesic and hypotensive drugs and cough medicine, and that an oncologist had prescribed him “lifelong” immunotherapy with a drug called “reodoron”. However, the drug intake schedule did not contain any mention of the drug “reodoron”.

(ii) Certificates issued by the acting head of the medical unit in the applicant’s correctional colony, listing the diagnosis and giving a short description of general medical procedures. According to the certificates, on 20 November 2014 the applicant’s condition was “satisfactory” and his illnesses “did not present any danger” to his life. The certificates also indicated that there were no signs of progressive lung failure or “cancer intoxication” (paraneoplastic syndromes, such as fever). The acting head of the unit nevertheless noted that any illness, including those suffered by the applicant, could be life-threatening.

(iii) A certificate dated 24 November 2011 issued by the head of the applicant’s correctional colony setting out his criminal record and convictions and indicating that since 23 August 2014 he had been detained in the correctional colony as there were no grounds to keep him in the prison hospital.

28. In a one-page document the Government also answered the three questions which on 12 November 2014 the Court had asked to be addressed to independent medical experts. In particular, they stressed that upon the applicant’s arrival at each correctional institution he had undergone clinical tests and had been examined by medical specialists. He had thus been placed under regular medical supervision in relation to his illnesses. The Government argued that his condition was satisfactory and that there was no threat to his life as he was afforded medical care appropriate to his condition and in the required amount. They concluded that his condition did not call for admittance to a specialist hospital or release.

29. The applicant commented on the Government’s information, insisting that the medical assistance afforded to him was inadequate and that his life was in imminent danger unless antitumor and radiation treatment were administered to him. He relied on the results of a medical examination on 18 December 2014, which had revealed new and growing metastases in the right adrenal gland, the left brain hemisphere and the right cerebellar hemisphere.

30. The applicant also submitted an alternative expert report commissioned by his lawyer. On 17 January 2015 two forensic medical experts from St. Petersburg State Medical University prepared a report responding to the three questions put by the Court in its decision of 12 November 2014. Assessing the quality of the applicant’s medical assistance, the experts noted that since August 2012 the applicant had only received symptomatic treatment with anaesthetics for his kidney cancer. No other cancer-related treatment had been given until December 2014. The experts drew up a list of various established and widely applied medical procedures, including immunotherapy, extensive chemotherapy and radiotherapy, which should have been provided to a patient such as the applicant to improve his condition and extend his life. The experts stressed that even after the growing metastasis in the applicant’s brain was discovered in December 2014 the prison doctors had not considered the possibility of radiotherapy. The experts noted that the drug “reodoron” mentioned in his medical record did not exist. They further criticised other aspects of his medical assistance, including the frequency and direction of important medical examinations. The experts concluded that the applicant’s life expectancy was critically low. He had no more than a few months to live, particularly in view of the fact that he was not being afforded the necessary treatment.

C. Developments after communication of the case

31. Following communication of the case to the parties, on 29 June 2015 the Government informed the Court that the applicant had died on 8 April 2015. They submitted a copy of the death certificate and asked the Court, in the absence of any person wishing to pursue the application on his behalf, to strike the case out of the list of cases pursuant to Article 37 § 1 (c) of the Convention.

32. The Government included the applicant’s medical record drawn up between December 2014 and April 2015 in a letter to the Court dated 24 September 2015. They also enclosed a number of certificates prepared by the acting heads of the correctional colony and colony medical unit. The acting head of the colony laid down the details of the applicant’s criminal record, indicated that he had not made any complaints to the colony administration between 21 November 2014 and 8 April 2015 and that a request he had made for early release had been dismissed by the Ingodinskiy District Court on 16 March 2015. In separate certificates the acting head of the medical unit recorded the progress of the applicant’s illness, placing particular emphasis on the rapid deterioration of his health in 2014 when new and growing metastases had been discovered in his lungs, lymph nodes, adrenal gland and brain, and the development of cancer intoxication, accompanied by serious bilateral polysegmental pneumonia, brain oedema and terminal kidney failure. The applicant’s condition had been considered particularly serious between 18 December 2014 and 1 February 2015, and then between 24 March and 8 April 2015. The assessment had been changed to moderately serious for the period 1 February to 23 March 2015, although no changes in the long list of conditions had been recorded.

33. In the letter of 18 August 2015 the applicant’s lawyer informed the Court that Ms Artemyeva, the applicant’s sister and heir, wished to continue the proceedings before the Court on the applicant’s behalf. The lawyer enclosed a birth certificate as proof of the applicant and Ms Artemyeva’s relationship and copies of letters sent by various Russian authorities to Ms Artemyeva in response to complaints alleging that they had failed to properly treat the applicant.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND REPORTS

34. The relevant provisions of Russian and international law on the medical care of detainees are set out in the following judgments: Amirov v. Russia (no. 51857/13, §§ 50-57, 27 November 2014), Pakhomov v. Russia (no. 44917/08, 30 September 2011) and Yevgeniy Alekseyenko v Russia (no. 41833/04, 27 January 2011).

THE LAW

I. PRELIMINARY CONSIDERATIONS: THE LOCUS STANDI OF THE APPLICANT’S SISTER

35. The applicant died on 8 April 2015, while the case was pending before the Court. The applicant’s sister, Ms Artemyeva, wished to pursue the application after his death. The Government did not comment. The Court has already, in a number of cases in which applicants have died in the course of the proceedings, examined and confirmed the locus standi of their heirs or close relatives, such as brothers or sisters, to pursue the proceedings before the Court, including in cases brought under Article 3 of the Convention (see, among many other authorities, Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI; Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014; Koryak v. Russia, no. 24677/10, §§ 58-68, 13 November 2012; Getiren v. Turkey, no. 10301/03, §§ 61-62, 22 July 2008; and Toteva v. Bulgaria, no. 42027/98, § 45, 19 May 2004).

36. The decisive element for the Court to determine while assessing the locus standi of persons wishing to pursue the proceedings on behalf of a late applicant is whether those people, in principle, can claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court (see Ergezen, cited above, § 29). In this respect, the Court has developed a strong presumption that human rights cases before it generally have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice be done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII).

37. In the light of the above and given the elements of the case, the Court holds that Ms Artemyeva has a legitimate interest in pursuing the application on the applicant’s behalf and that respect for human rights as defined in the Convention and the Protocols thereto requires a continuation of the examination of the case.

II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

38. The applicant argued that the Government’s failure to have his medical examination performed with a view to answering the three questions asked by the Court had been in breach of the interim measure indicated by the Court under Rule 39 of the Rule of Court and had thus violated his right to individual application. He relied on Article 34 of the Convention, which reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

Rule 39 of the Rules of Court provides:

“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.

2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.

3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”

A. Submissions by the parties

39. The Government argued that their alleged failure to submit an independent medical report as requested by the Court had not prevented the effective exercise by the applicant of his right to communicate with the Court and thus did not entail a violation of Article 34, or of any other provision of the Convention. The applicant’s right to communicate with the Court had in no way been interfered with. The applicant had retained counsel, who had submitted his application to the Court. He and his counsel had communicated freely with the Court. Lastly, the Government submitted that that it had been open to the applicant to submit an independent medical opinion assessing the quality of his treatment. They also stressed that the Court had received the reports prepared by the medical panel whose independence and competence did not raise any doubts, particularly in view of the fact that the panel had recommended the applicant’s release on grounds of ill health.

40. The applicant maintained his claim.

B. The Court’s assessment

1. General principles

41. The Court reiterates that, pursuant to Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, and this has been consistently reaffirmed as a cornerstone of the Convention system (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005-I). Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there are positive obligations inherent in Article 34 requiring the authorities to furnish all the necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in situations where applicants are particularly vulnerable (see Naydyon v. Ukraine, no. 16474/03, § 63, 14 October 2010; Savitskyy v. Ukraine, no. 38773/05, § 156, 26 July 2012; and Iulian Popescu v. Romania, no. 24999/04, § 33, 4 June 2013).

42. According to the Court’s established case-law, a respondent State’s failure to comply with an interim measure may entail a violation of the right of individual application (see Mamatkulov and Askarov, cited above, § 125, and Abdulkhakov v. Russia, no. 14743/11, § 222, 2 October 2012). The Court cannot emphasise enough the special importance attached to interim measures in the Convention system. Their purpose is not only to enable an effective examination of the application to be carried out, but also to ensure that the protection afforded to the applicant by the Convention is effective. Such measures subsequently allow the Committee of Ministers to supervise the execution of the final judgment. Interim measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention (see Mamatkulov and Askarov, cited above, § 125; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 473, ECHR 2005-III; Aoulmi v. France, no. 50278/99, § 108, ECHR 2006-I; and Ben Khemais v. Italy, no. 246/07, § 82, 24 February 2009).

43. The crucial significance of interim measures is further highlighted by the fact that the Court issues them, as a matter of principle, only in truly exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most of these cases, the applicants face a genuine threat to life and limb, with the ensuing real risk of serious, irreversible harm in breach of the core provisions of the Convention. The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also requires that the utmost importance be attached to the question of the States Parties’ compliance with the Court’s indications in that regard (see, inter alia, the firm position on that point expressed by the States Parties in the Izmir Declaration and by the Committee of Ministers in Interim Resolution CM/ResDH(2010)83 in the above-mentioned case of Ben Khemais). Any laxity on this question would unacceptably weaken the protection of the core rights in the Convention and would not be compatible with its values and spirit (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161); it would also be inconsistent with the fundamental importance of the right of individual petition and, more generally, undermine the authority and effectiveness of the Convention as a constitutional instrument of European public order (see Mamatkulov and Askarov, cited above, §§ 100 and 125, and, mutatis mutandis, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310).

44. Article 34 will be breached if the authorities of a Contracting State fail to take all the steps which could reasonably be taken in order to comply with an interim measure indicated by the Court (see Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009). It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and keep the Court informed about the situation (ibid., §§ 92-106; see also Aleksanyan v. Russia, no. 46468/06, §§ 228-232, 22 December 2008, in which the Court concluded that the Russian Government had failed to honour their commitments under Article 34 of the Convention as a result of their failure to promptly transfer a seriously ill applicant to a specialist hospital and have him examined by a mixed medical panel including doctors of his own choosing, in disregard of an interim measure imposed by the Court under Rule 39).

2. Application to the present case

45. Turning to the circumstances of the present case, the Court notes that in a letter sent on 13 November 2014 it indicated to the Russian Government, under Rule 39 of the Rules of Court, in the interests of the parties and the proper conduct of the proceedings before the Court, that the applicant should be immediately examined by medical experts independent from the penal system with a view to determining three issues: (i) whether the treatment he was receiving in detention was adequate to his condition; (ii) whether his state of health was compatible with the conditions of his detention; and (iii) whether his condition required his admittance to specialist hospital or release. The Government responded, submitting the applicant’s medical record and certificates drawn up by the detention authorities. They also answered the three questions put by the Court themselves (see paragraphs 27 and 28 above).

46. Following communication of the case, the Government insisted that they had fully complied with the interim measure, as the Court had received a report by the medical panel recommending the applicant’s release. They had also provided answers to the Court’s questions in their letter of 4 December 2014. The Court is not convinced by the Government’s argument. It reiterates that the aim of the interim measure in the present case - as formulated in the Court’s decision of 12 November 2014, of which the Government were notified in a letter of 13 November 2014 - was to obtain an independent medical expert assessment of the applicant’s state of health, the quality of the treatment he was receiving and the adequacy of the conditions of his detention in view of his medical needs. That expert evidence was necessary to decide whether, as the applicant argued, his life and limb were at real risk as a result of the alleged lack of requisite medical care in detention. In addition, the Court was concerned with the contradictory nature of the evidence collected by the applicant and submitted with his application and his request for an interim measure, and the information submitted by the Government in response to the request sent by the Court in August 2014 (see paragraphs 23 and 24 above). The interim measure in the present case was therefore also meant to ensure that the applicant could effectively pursue his case before the Court (see, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 141, ECHR 2008).

47. Whilst the formulation of an interim measure is one of the elements to be taken into account in the Court’s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi, cited above, § 91) and, indeed, to its very purpose. The main aim of the interim measure, as indicated by the Court in the present case - and the Government did not claim to be unaware of this - was to prevent the applicant’s exposure to inhuman and degrading suffering in view of his poor health and his remaining in a correctional colony that was - according to him - unable to ensure that he received adequate medical assistance. There could have been no doubt about either the purpose or the rationale of that interim measure.

48. The Court does not need to assess the professional expertise or qualifications of the doctors of the medical panels which prepared the reports of 6 and 28 March 2013 and 2 July 2014, or their independence from the penal system, as it considers that their opinion as reflected in the three reports did not provide any answers to the three questions put by the Court. The aim of the three medical examinations, the results of which were set out in those reports, was to compare the applicant’s medical condition with the exhaustive list of illnesses provided for by the Government decree no. 54 of 6 February 2004, and which could have warranted his release. At no point during the examinations did the doctors from the panels assess the applicant’s state of health independently of that list or evaluate whether his illness, given its current manifestation, nature and duration, required his transfer to a specialist hospital. Nor did they apply their minds to the quality of the medical care he had been receiving while in detention, or to the conditions in which he was being detained. The reports therefore have no relevance to the implementation of the interim measure indicated by the Court to the Russian Government in the present case (see, for similar reasoning, Amirov, cited above, § 91).

49. The Court further observes that the Government themselves responded to the three questions put to them in the decision of 12 November 2014. The Court notes in this connection that in view of the vital role played by interim measures in the Convention system, they must be strictly complied with by the State concerned, acting in good faith. The Court cannot conceive, therefore, of allowing the authorities to circumvent an interim measure such as the one indicated in the present case by replacing expert medical opinion with their own assessment of the applicant’s situation. Yet that is exactly what the Government did in the present case (see paragraphs 27 and 28 above). In so doing, the State has frustrated the purpose of the interim measure, which sought to enable the Court, on the basis of relevant, independent medical opinion, to effectively respond to and, if need be, prevent the possible continued exposure of the applicant to physical and mental suffering in violation of the guarantees of Article 3 of the Convention (see Khloyev v. Russia, no. 46404/13, § 67, 5 February 2015, and Salakhov and Islyamova v. Ukraine, no. 28005/08, § 222, 14 March 2013.

50. The Government did not demonstrate any objective impediment preventing compliance with the interim measure (see Paladi, cited above, § 92). Consequently, the Court concludes that the State has failed to comply with the interim measure indicated by it in the present case under Rule 39 of the Rules of Court, in breach of its obligation under Article 34 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

51. The applicant complained that he had been unable to obtain effective medical care while in detention, which had put him in a life-threatening situation and subjected him to severe physical and mental suffering, in violation of the guarantees of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Submissions by the parties

52. The Government stressed that the applicant had received comprehensive medical care in detention. They relied on documents enclosed with their reply of 15 September 2014 (see paragraph 24 above), also submitting that there was no expert report identifying the absence of proper medical care as the cause of his death.

53. Relying on the expert reports of 22 April and 20 October 2014 and 17 January 2015, as well as the District Court’s decision of 1 October 2014 acknowledging the authorities’ failure to provide anti-cancer treatment, the applicant argued that he had been left without any medical assistance and thus had been put in a life-threatening situation.

B. The Court’s assessment

1. Admissibility

54. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General principles

(i) As to the Court’s evaluation of the facts and the burden of proof

55. In cases in which there are conflicting accounts of events, the Court is inevitably confronted with the same difficulties as those faced by any first-instance court when establishing the facts. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability, but on Contracting States’ responsibility under the Convention. The specific nature of its task under Article 19 of the Convention - to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention - determines its approach to issues of evidence and proof. In proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by a free evaluation of all the evidence, including such inferences as may flow from the facts and the parties’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specific nature of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).

56. Furthermore, it should be pointed out that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. They should also allow taking into account the specific circumstances of each case, including the nature of the facts at issue and the difficulty for the parties to present evidence in support of their submissions. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events at issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008). In this case, in the absence of such an explanation the Court can draw inferences which may be unfavourable for the respondent Government (see, for instance, Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002, and Buntov v. Russia, no. 27026/10, § 161, 5 June 2012).

(ii) As to the application of Article 3 and standards of medical care for detainees

57. 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, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all 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, Verbinţ v. Romania, no. 7842/04, § 63, 3 April 2012, with further references).

58. 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).

59. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty 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 secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most cases concerning the detention of persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Kalashnikov, cited above, § 95; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)).

60. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Yevgeniy Alekseyenko, cited above, § 100; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Holomiov, cited above, § 117, and Hummatov, cited above, § 116). Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, 23 March 2016 and Cara-Damiani v. Italy, no. 2447/05, § 66, 7 February 2012).

61. On the whole, the Court reserves to itself sufficient flexibility in defining the required standard of health care, determining it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan, cited above, § 140).

(b) Application of the above principles to the present case

62. Turning to the circumstances of the present case, the Court observes that the applicant suffered from an oncological illness at an advanced stage, with growing multiple metastases having spread to the lungs and lymph nodes.

63. The applicant’s main contention was that he did not receive any treatment for his illness. No immunotherapy, chemotherapy or radiotherapy which could have, perhaps, improved his condition and extended his life, was given to him in detention. The Government disagreed. They insisted that he had received proper medical assistance in detention and that there had been no threat to his life (see paragraph 28 above).

64. The Court has already stressed the difficult task it faces in evaluating the differing and even mutually contradictory evidence submitted by the parties in the present case (see paragraph 46 above). Its task has been further complicated by the need to assess evidence calling for expert knowledge in various medical fields. In this connection, it emphasises that it is sensitive to the subsidiary nature of its role (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny” (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010).

65. Coming back to the medical reports and certificates, as well as other evidence submitted by the applicant in the present case, the Court is satisfied that there is prima facie evidence in favour of his submissions, particularly so in view of the Government’s failure to submit evidence requested by the Court.

66. Having regard to its findings under Article 34 of the Convention, the Court considers that it can draw inferences from the Government’s conduct and is ready to apply a particularly thorough scrutiny to the evidence submitted by them in support of their position. It therefore finds that the Government have failed to demonstrate conclusively that the applicant received effective medical treatment for his illnesses while in detention. The evidence submitted by the Government is unconvincing and insufficient to rebut the applicant’s account of the treatment to which he was subjected in detention. In such circumstances, the Court considers the applicant’s allegations established to the requisite standard of proof. The Court’s conclusion becomes even more salient in view of the Ingondinskiy District Court’s decision on 1 October 2014 to authorise the applicant’s transfer from the correctional colony to the prison hospital, given the colony administration’s failure to provide him with anti-cancer treatment (see paragraph 20 above).

67. The Court thus finds that the applicant was left without the vital medical care for his illnesses. Despite the authorities’ knowledge of his diagnosis and their awareness of the steady progress of his illness since August 2012, the applicant did not receive any cancer-related treatment, save for symptomatic treatment of his illness with anaesthetics, until December 2014, that is merely four months before his death. The medical supervision afforded to him was insufficient to maintain his health. Moreover, he was prescribed a drug which did not exist (see paragraphs 27 and 30 above). There was no thorough evaluation of his condition. The prison medical staff did not take any steps to deal with the rapid progress of his illness. The Court is also particularly concerned with the fact that despite the District Court’s decision authorising the applicant’s transfer to the correctional colony, he still remained in an ordinary correctional colony without any specialist medical care (see paragraph 27 above). Lastly, the Court considers particularly noteworthy the Government’s argument, raised in their letter of 4 December 2014, that the applicant’s condition was satisfactory and that there was no threat to his life given the quality of the medical care afforded to him. In their assessment of the applicant’s state of health they relied on certificates issued by the colony administration at the end of November 2014. Without placing too much emphasis on the quality or credibility of the information submitted by the detention authorities, the Court again notes that the applicant’s death occurred approximately four months after they had drafted their certificates.

68. To sum up, the Court considers that, as a result of the lack of comprehensive and adequate medical treatment, the applicant was exposed to prolonged mental and physical suffering that diminished his human dignity. The authorities’ failure to provide him with the medical care he needed amounted to inhuman and degrading treatment for the purposes of Article 3 of the Convention.

69. Accordingly, there has been a violation of Article 3 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

70. 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

71. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

72. The Government argued that the claim was unsubstantiated and that, even if the Court were to find a violation of the Convention and award compensation, the sum of that compensation would have to be decreased as it would be paid to the applicant’s sister, who was not the direct victim of such a violation.

73. The Court, making its assessment on an equitable basis, decides that the sum claimed by the applicant shall be paid in full to his sister, Ms Artemyeva, plus any tax that may be chargeable on that amount.

B. Costs and expenses

74. The applicant also claimed EUR 2,000 in legal fees for his representation before the Russian authorities and the Court. He supported his claim with a copy of a contract with his lawyer, Ms Khrunova, by virtue of which she was paid 120,000 Russian roubles (RUB) for her services.

75. The Government submitted that the sum should be calculated in line with the current exchange rate or paid in Russian roubles. They also considered the sum to be excessive, as the work done had not been particularly difficult.

76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria, and to the documents in its possession, including the documents prepared by the applicant’s lawyer in the course of the proceedings before the Court and the legal contract, the Court considers it reasonable to award the sum of EUR 1,600 for costs and expenses, to be paid into the bank account of the applicant’s representative.

C. Default interest

77. The Court 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,

1. Decides that the applicant’s sister, Ms Artemyeva, has locus standi in the proceedings;

2. Declares the application admissible;

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

4. Holds that there has been a violation of Article 3 of the Convention;

5. Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable, to be paid to Ms Artemyeva;

(ii) EUR 1,600 (one thousand and six hundred euros), in respect of costs and expenses, to be paid to the bank account of Ms I. Khrunova, the lawyer who represented the applicant in the proceedings before the Court;

(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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KLIMOV v. RUSSIA - 54436/14 [2016] ECHR 809 (04 October 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/809.html Cite as: [2016] ECHR 809, ECLI:CE:ECHR:2016:1004JUD005443614, CE:ECHR:2016:1004JUD005443614