CASE OF PISAREV AND OTHERS v. RUSSIA (European Court of Human Rights) 2556/18 and 4 others

The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)


THIRD SECTION
CASE OF PISAREV AND OTHERS v. RUSSIA
(Applications nos. 2556/18 and 4 others – see appended list)
JUDGMENT
STRASBOURG
28 July 2022

This judgment is final but it may be subject to editorial revision.

In the case of Pisarev and Others v. Russia,

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

Darian Pavli, President,
Andreas Zünd,
Mikhail Lobov, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 16 June 2022,

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

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. Notice of the applications was given to the Russian Government (“the Government”).

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

6. The applicants complained principally that they were not afforded adequate medical treatment in detention. They relied on Article 3 of the Convention, which reads as follows:

Article 3

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

7. The Court notes that the applicants suffered from serious medical conditions, as indicated in the appended table, which affected their everyday functioning. Therefore, they could have experienced considerable anxiety as to whether the medical care provided to them was adequate.

8. The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine (see Blokhin v. Russia [GC], no. 47152/06, § 137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate (see, for example, Gorbulya v. Russia, no. 31535/09, § 62, 6 March 2014, with further references and Pokhlebin v. Ukraine, no. 35581/06, § 62, 20 May 2010, with further references) and that ‒ where necessitated by the nature of a medical condition ‒ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see, inter alia, Ukhan v. Ukraine, no. 30628/02, § 74, 18 December 2008, with further references, and Kolesnikovich v. Russia, no. 44694/13, § 70, 22 March 2016, with further references). The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see, for instance, Sadretdinov v. Russia, no. 17564/06, § 67, 24 May 2016, with further references, and Konovalchuk v. Ukraine, no. 31928/15, § 52, 13 October 2016, with further references)

9. Having examined all the material submitted to it, the Court has identified the shortcomings in the applicants’ medical treatment, which are listed in the appended table. The Court has already found a violation in respect of issues similar to those in the present case (see Blokhin, cited above, §§ 120‑50, Reshetnyak v. Russia, no. 56027/10, §§ 49-101, 8 January 2013 and Koryak v. Russia, no. 24677/10, §§ 70-110, 13 November 2012). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicants did not receive comprehensive and adequate medical care whilst in detention.

10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

11. The applicants also complained that no effective domestic remedies regarding the quality of the medical care in detention were available to them. Their complaints fall to be examined under Article 13 of the Convention, which reads as follows:

Article 13

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority …”

12. The Court has on many occasions established that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention (see, among many other authorities, Reshetnyak, cited above, §§ 49-101, and Koryak, cited above, §§ 70-110). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government constituted an effective remedy to prevent the alleged violations or stop them from continuing, or to provide the applicants with adequate and sufficient redress for their complaints under Article 3 of the Convention.

13. The Court sees no reason which would justify departure from its well‑established case-law on the issue. It finds that the applicants did not have at their disposal an effective domestic remedy for their complaints, in breach of Article 13 of the Convention.

IV. REMAINING COMPLAINTS

14. Mr Lavrinovich (application no. 9295/18) also raised other complaints under various Articles of the Convention.

15. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

16. 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.”

17. Regard being had to the documents in its possession and to its case‑law (see, in particular, Kolesnikovich, cited above, §§ 82-92, Tselovalnik v. Russia, no. 28333/13, §§ 70-77, 8 October 2015 and Budanov v. Russia, no. 66583/11, §§ 77-83, 9 January 2014), the Court considers it reasonable to award the sums indicated in the appended table.

18. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints concerning the failure of the authorities to provide the applicants with adequate medical care in detention and the complaints concerning the lack of effective remedies in this regard admissible, and the remainder of application no. 9295/18 inadmissible;

3. Holds that these complaints disclose a breach of Article 3 of the Convention on account of the inadequate medical care in detention;

4. Holds that these complaints disclose a breach of Article 13 of the Convention on account of the lack of an effective domestic remedy regarding complaints about the quality of the medical care in detention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 28 July 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                     Darian Pavli
Acting Deputy Registrar                   President

_____________

APPENDIX
List of applications raising complaints under Articles 3 and 13 of the Convention
(inadequate medical treatment in detention and lack of any effective remedy in this regard)

No. Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location Principal medical condition Shortcomings in medical treatment
Dates
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[i]
1. 2556/18
18/12/2017
Nikolay Nikolayevich PISAREV
1981
Petryakov Sergey Ivanovich
Kazan
HIV, hepatitis C, chronic obstructive lung disease, and pulmonary bulls Shortcomings identified by the Healthcare authority (Roszdravnadzor) in a letter of 10/10/2017 (irregular examinations by infectious disease doctor, neurologist, psychologist; irregular CD4 count; and the lack of certain blood tests), and by experts in a report of 18/08/2017 (irregular blood testing; belated launch of antiretroviral treatment; insufficient treatment of hepatitis C and lung disease; etc.)
Since 2015 – pending
More than 7 year(s)
15,000
2. 3605/18
21/02/2018
Aleksey Yuryevich BOROVKOV
1962
Cataract in both eyes failure to transfer the applicant to a hospital for a surgery, the applicant is detained in IK-18 in Yamalo‑Nenetskiy Autonomous Region
01/11/2012 – pending
Mor than 9 year(s) and 3 month(s) and 10 day(s)
15,000
3. 9295/18
29/01/2018
Dmitriy Gennadiyevich LAVRINOVICH
1974
Osteoarthritis of the ankle joint
Paraproctitis
Lack of surgery prescribed on 26/11/2015
26/11/2015 – pending
More than 6 year(s) and 2 month(s) and 16 day(s)
Lack of surgery prescribed on 19/09/2016
19/09/2016 – 26/03/2018
1 year(s) and 6 month(s) and 8 day(s)
15,000
4. 12332/18
07/03/2018
Ruslan Magometovich ESMURZIYEV
1991
Kogan Vanessa
Moscow
Retinal separation / right eye lack of/delay in medical examination, urgent surgery/silicone removal from the right eye
01/10/2016 – pendingMore than 5 year(s) and 4 month(s) and 10 day(s)
15,000
5. 24511/18
17/05/2018
Koba Shalvovich SHURGAYA
1972
Krikun Leonid Leonidovich
St Petersburg
Acute pain and swelling in both ankle joints; swelling and numbness in both feet lack of consultation by a surgeon or a vascular surgeon in IK-7 Republic of Karelia
13/04/2018 – pending
More than 3 year(s) and 9 month(s) and 29 day(s)
lack of a two-dimensional X-ray of both feet in IK‑7 Republic of Karelia
15/05/2018 – pending
More than 3 year(s) and 8 month(s) and 27 day(s)
lack of an X-ray of both ankle joints in IK-7 Republic of Karelia
15/05/2018 – pending
More than 3 year(s) and 8 month(s) and 27 day(s)
lack of an ultrasound of arteries and veins of the lower limbs in IK-7 Republic of Karelia
15/05/2018 – pending
More than 3 year(s) and 8 month(s) and 27 day(s)
15,000

[i] Plus any tax that may be chargeable to the applicants.

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