THIRD SECTION
\nDECISION
\nApplication no.47387\/15
\nMariya Alekseyevna CHERNYSHEVA
\nagainst Russia<\/p>\n
The European Court of Human Rights (Third Section), sitting on 13\u00a0March 2018 as a Committee composed of:<\/p>\n
Helen Keller, President,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 8 September 2015,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The 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.\u00a0Shagiakhmetov. On 19 July 2017 the applicant died, and her daughter, MsIrina Leonidovna Shagiakhmetova, expressed her wish to pursue the application.<\/p>\n 2.\u00a0\u00a0The Russian Government (\u201cthe Government\u201d) were represented initially by Mr\u00a0A. Fedorov, the Acting Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr\u00a0M. Galperin.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0The applicant\u2019s 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.<\/p>\n 5.\u00a0\u00a0In January 2015 the supply was interrupted due to underfunding. By April\u00a02015 the applicant\u2019s 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\u00a0of the delayed items.<\/p>\n 6.\u00a0\u00a0On 1 September 2015 the applicant\u2019s grandson complained to the prosecutor again because the court order had not yet been complied with.<\/p>\n 7.\u00a0\u00a0On 9 September 2015 the Ministry supplied 90 items.<\/p>\n 8.\u00a0\u00a0On 17 September 2015 the applicant\u2019s grandson complained to the district prosecutor again because the Ministry still owed the 240\u00a0items 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\u2019s relatives to collect the goods. The applicant\u2019s grandson complained to the Chelyabinsk town prosecutor that the goods should have been delivered. On 15\u00a0October 2015 the Ministry delivered the 240 items.<\/p>\n 9.\u00a0\u00a0As the regular supply failed to resume, the district prosecutor applied to the district court again.<\/p>\n 10.\u00a0\u00a0On 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\u2013December 2015.<\/p>\n 11.\u00a0\u00a0The Ministry refused to deliver the goods to the applicant\u2019s 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\u2019s relatives to pick up the goods from a warehouse.<\/p>\n 12.\u00a0\u00a0The 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.<\/p>\n 13.\u00a0\u00a0On 24 June 2016 the Ministry supplied 460 items.<\/p>\n 14.\u00a0\u00a0On 19 July 2016 the Ministry supplied another 560 items.<\/p>\n 15.\u00a0\u00a0On 9 August 2016 the bailiff terminated the enforcement of the court order.<\/p>\n 16.\u00a0\u00a0On 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\u2019s 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.<\/p>\n 17.\u00a0\u00a0On 30 April 2017 the Ministry supplied 180 items.<\/p>\n 18.\u00a0\u00a0On 19 July 2017 the applicant died.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 19.\u00a0\u00a0The Federal Law on the Social Protection of Invalids in the Russian Federation (\u0424\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u044b\u0439 \u0437\u0430\u043a\u043e\u043d \u00ab\u041e \u0441\u043e\u0446\u0438\u0430\u043b\u044c\u043d\u043e\u0439 \u0437\u0430\u0449\u0438\u0442\u0435 \u0438\u043d\u0432\u0430\u043b\u0438\u0434\u043e\u0432 \u0432 \u0420\u043e\u0441\u0441\u0438\u0439\u0441\u043a\u043e\u0439 \u0424\u0435\u0434\u0435\u0440\u0430\u0446\u0438\u0438\u00bb \u2116 181-\u0424\u0417 \u043e\u0442 24 \u043d\u043e\u044f\u0431\u0440\u044f 1995 \u0433.,the Disabled Persons (Welfare) Act 1995) as in force at the material time:<\/p>\n Section 11 \u00a7 6. An invalid\u2019s individual rehabilitation or habilitation programme<\/p>\n 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.<\/p>\n COMPLAINT<\/strong><\/p>\n 20.\u00a0\u00a0The applicant complained under Article 3 of the Convention that the unreliable supply of incontinence products had been degrading for her as an invalid.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0The standing of Ms Shagiakhmetova<\/strong><\/p>\n 21.\u00a0\u00a0The Court must first determine if Ms\u00a0Shagiakhmetova may pursue the application after the applicant\u2019s 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.\u00a0Russia\u00a0(dec.), no.\u00a076737\/01, 16\u00a0October 2003 and Matviyenko v.\u00a0Russia\u00a0(dec.), no.\u00a053664\/08, 25\u00a0November 2010).<\/p>\n 22.\u00a0\u00a0Ms Shagiakhmetova is the applicant\u2019s 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\u00a0Shagiakhmetova fed the applicant three times a day, changed her underwear and bedding, washed and dressed her. Ms\u00a0Shagiakhmetova asserts that the lack of incontinence products took an extra emotional toll on her.<\/p>\n 23.\u00a0\u00a0The Government did not object to Ms Shagiakhmetova\u2019s succession.<\/p>\n 24.\u00a0\u00a0The Court considers that Ms Shagiakhmetova may pursue the application.<\/p>\n B.\u00a0\u00a0The alleged breach of Article\u00a03<\/strong><\/p>\n Article\u00a03 of the Convention reads:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 25.\u00a0\u00a0The 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\u00a03.<\/p>\n 26.\u00a0\u00a0To 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.<\/p>\n 2.\u00a0\u00a0The applicant<\/em><\/p>\n 27.\u00a0\u00a0The applicant maintained her complaint.<\/p>\n 28.\u00a0\u00a0She 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.<\/p>\n 29.\u00a0\u00a0Having 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.<\/p>\n 3.\u00a0\u00a0The Court<\/em><\/p>\n 30.\u00a0\u00a0Under Article 35 \u00a7 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\u2011XI (extracts); Znamenskaya v. Russia (dec.), no. 77785\/01, 25 March 2004; and Trubnikov v.\u00a0Russia (dec.), no. 49790\/99, 14 October 2003).<\/p>\n 31.\u00a0\u00a0The Court agrees with the Government that the applicant\u2019s 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 \u00a7 6 of the Disabled Persons (Welfare) Act 1995, as explained to the applicant by the prosecutor.<\/p>\n 32.\u00a0\u00a0As to that remedy\u2019s 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.\u00a0Turkey, 16 September 1996, \u00a7 68, Reports of Judgments and Decisions\u00a01996\u00a0IV). Furthermore, the applicant\u2019s submissions show that her relatives did occasionally buy the underwear for her. As to the applicant\u2019s physical inability to claim the costs from the government, she could have been helped by her relatives.<\/p>\n 33.\u00a0\u00a0Accordingly, this complaint must be rejected under Article\u00a035 \u00a7\u00a7\u00a01 and\u00a04 of the Convention for non-exhaustion of domestic remedies.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Holds that the applicant\u2019s heir, Ms Irina Leonidovna Shagiakhmetova, may pursue the application;<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 5 April 2018.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Helen Keller
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n