Last Updated on November 2, 2019 by LawEuro
THIRD SECTION
DECISION
Application no.47387/15
Mariya Alekseyevna CHERNYSHEVA
against Russia
The European Court of Human Rights (Third Section), sitting on 13 March 2018 as a Committee composed of:
Helen Keller, President,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 8 September 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Mariya Alekseyevna Chernysheva, was a Russian national who was born in 1928 and lived in Chelyabinsk. She was represented before the Court by Mr A. Shagiakhmetov. On 19 July 2017 the applicant died, and her daughter, MsIrina Leonidovna Shagiakhmetova, expressed her wish to pursue the application.
2. The Russian Government (“the Government”) were represented initially by Mr A. Fedorov, the Acting Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant’s psychiatric illness confined her to bed. In May 2012 the applicant was assessed with a permanent disability of the highest degree. Her individual rehabilitation plan recorded her need for three disposable incontinence pants a day to be supplied by the Welfare Ministry of the Chelyabinsk Region.
5. In January 2015 the supply was interrupted due to underfunding. By April 2015 the applicant’s stock of the pants had depleted, and her grandson complained to the public prosecutor of the Traktorozavodskiy District of Chelyabinsk. The prosecutor intervened for the applicant in the courts, and on 19 June 2015 the Central District Court of Chelyabinsk ordered the Ministry to supply 240 of the delayed items.
6. On 1 September 2015 the applicant’s grandson complained to the prosecutor again because the court order had not yet been complied with.
7. On 9 September 2015 the Ministry supplied 90 items.
8. On 17 September 2015 the applicant’s grandson complained to the district prosecutor again because the Ministry still owed the 240 items mentioned in the court order. On 30 September 2015 the prosecutor refused to take action because in the meantime the Ministry had invited the applicant’s relatives to collect the goods. The applicant’s grandson complained to the Chelyabinsk town prosecutor that the goods should have been delivered. On 15 October 2015 the Ministry delivered the 240 items.
9. As the regular supply failed to resume, the district prosecutor applied to the district court again.
10. On 21 December 2015 the court ordered the Ministry to supply the delayed items. On appeal, on 24 March 2016 the Chelyabinsk Regional Court clarified that the Ministry owed 450 items for the period July–December 2015.
11. The Ministry refused to deliver the goods to the applicant’s home because they were bulky and would have to be transported in a vehicle, but the Ministry was short of vans and was not in fact obliged by law to deliver. Instead, the Ministry invited the applicant’s relatives to pick up the goods from a warehouse.
12. The applicant complained to the district prosecutor. On 22 April 2016 the prosecutor agreed with the applicant that the Ministry should have delivered the goods and that the court order of 21 December 2015 had not yet been complied with. The prosecutor promised to censure the regional welfare Minister.
13. On 24 June 2016 the Ministry supplied 460 items.
14. On 19 July 2016 the Ministry supplied another 560 items.
15. On 9 August 2016 the bailiff terminated the enforcement of the court order.
16. On 27 February 2017 the prosecutor answered a new complaint lodged by the applicant. The former conceded that 78 items due in 2016 had not yet been supplied. She noted, however, that the courts now refused to give orders for the supply of delayed daily necessities like the applicant’s because such necessities were useful only at the appropriate time, could not be consumed in bulk, and hence a belated bulk delivery of the items would not redress past privations. The prosecutor advised the applicant of the possibility of buying her own pants and reclaiming the costs from the government.
17. On 30 April 2017 the Ministry supplied 180 items.
18. On 19 July 2017 the applicant died.
B. Relevant domestic law
19. The Federal Law on the Social Protection of Invalids in the Russian Federation (Федеральный закон «О социальной защите инвалидов в Российской Федерации» № 181-ФЗ от 24 ноября 1995 г.,the Disabled Persons (Welfare) Act 1995) as in force at the material time:
Section 11 § 6. An invalid’s individual rehabilitation or habilitation programme
If a technical means of rehabilitation and (or) service provided for in an individual rehabilitation or habilitation programme cannot be supplied to an invalid, or if the latter has acquired the respective technical means of rehabilitation and (or) paid for the service at his own expense, he shall be paid compensation in the amount of the cost of the acquired means and (or) supplied service, but no more than the cost of the respective means and (or) service supplied [by the government]. The conditions pertaining to such compensation, including the manner of determination of its amount and the method of informing individuals of the amount of said compensation, shall be defined by a federal body of the executive branch of power carrying out the functions of formulation and implementation of the State policy and legislative regulation in the sphere of the social protection of the population.
COMPLAINT
20. The applicant complained under Article 3 of the Convention that the unreliable supply of incontinence products had been degrading for her as an invalid.
THE LAW
A. The standing of Ms Shagiakhmetova
21. The Court must first determine if Ms Shagiakhmetova may pursue the application after the applicant’s death. The Court reiterates that if an applicant dies after introducing her case, the next of kin may adopt it if they have a legitimate interest in it or if the alleged breach has affected them personally (see, with further references, Andreyeva v. Russia (dec.), no. 76737/01, 16 October 2003 and Matviyenko v. Russia (dec.), no. 53664/08, 25 November 2010).
22. Ms Shagiakhmetova is the applicant’s daughter and heir. She states that she lived with and cared for her mother during the last five bedridden years of her life. In particular, Ms Shagiakhmetova fed the applicant three times a day, changed her underwear and bedding, washed and dressed her. Ms Shagiakhmetova asserts that the lack of incontinence products took an extra emotional toll on her.
23. The Government did not object to Ms Shagiakhmetova’s succession.
24. The Court considers that Ms Shagiakhmetova may pursue the application.
B. The alleged breach of Article 3
Article 3 of the Convention reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The Government
25. The Government submitted that the application was inadmissible because the applicant had not exhausted the domestic remedies and because there had been no breach of Article 3.
26. To offset the late supply of the goods, the applicant could have bought her own and claimed reimbursement. As the prosecutor explained to the applicant, this possibility was foreseen in the Disabled Persons (Welfare) Act 1995. The applicant could also have claimed damages for the belated execution of the court orders but, in any case, in the end the court orders had been executed, and the applicant had received what was due to her.
2. The applicant
27. The applicant maintained her complaint.
28. She argued that she had had too little money available to have bought the products herself. Legal procedures would have been time-consuming and probably futile. Besides, enfeebled as she was, she could not defend her rights herself or give notarised authorisation to anyone else.
29. Having to wait for the incontinence wear had humiliated and stressed her and her relatives. So did having to appeal to the authorities, a procedure that had been all the more difficult because she was disabled. The Ministry had shown little interest in her distress despite the two court orders, the execution of which had been delayed by two months and twenty days, and by three months, respectively. The belated execution of the orders did not atone for her suffering. Her family members had been demoralised by the extra hygiene chores that they had been obliged to carry out.
3. The Court
30. Under Article 35 § 1 of the Convention the Court may only deal with the matter after all the domestic remedies have been exhausted. One must exhaust only remedies that are available, accessible, relevant, effective, and adequate see (Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001‑XI (extracts); Znamenskaya v. Russia (dec.), no. 77785/01, 25 March 2004; and Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003).
31. The Court agrees with the Government that the applicant’s hardship would have been best resolved if she had bought the delayed containment products when needed and reclaimed their cost from the State. There was legal provision for this possibility under section 11 § 6 of the Disabled Persons (Welfare) Act 1995, as explained to the applicant by the prosecutor.
32. As to that remedy’s de facto accessibility to the applicant, the Court notes that the applicant has failed to prove by citing specific figures that she genuinely could not afford the underwear. The burden of this proof lay with her (Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 IV). Furthermore, the applicant’s submissions show that her relatives did occasionally buy the underwear for her. As to the applicant’s physical inability to claim the costs from the government, she could have been helped by her relatives.
33. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Holds that the applicant’s heir, Ms Irina Leonidovna Shagiakhmetova, may pursue the application;
Declares the application inadmissible.
Done in English and notified in writing on 5 April 2018.
Fatoş Aracı Helen Keller
Deputy Registrar President
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