FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4575/07 by Aleksey Vladimirovich SOPOT against Russia

The European Court of Human Rights ( First Section), sitting on 16 September 2010 as a Chamber composed of:

Christos Rozakis , President, Anatoly Kovler , Elisabeth Steiner , Dean Spielmann , Sverre Erik Jebens , Giorgio Malinverni , George Nicolaou , judges, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 15 November 2006,

Having regard to the Court ' s decision to examine jointly the admissibility and merits of the case (Article 29 § 1 of the Convention),

Having regard to the observations submitted by the respondent,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksey Vladimirovich Sopot , is a Russian national who was born in 1988 and is serving a prison sentence . He is represented before the Court by Mr Yu. Chigayev , a lawyer practising in Pechory , Pskov Region . The respondent Government are represented by Mr G. Matyushkin , Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

The applicant has been disabled since childhood. He suffers from Scheuermann ' s disease ( kyphosis ), spinal arachnoiditis , and myelopathy . Following two operations in 2002 and 2005, he also developed spastic paraparesis .

1. Criminal proceedings against the applicant

On 25 February 2006 the applicant was arrested and charged with numerous offences, including murder and theft of firearms. His pre-trial detention was extended on several occasions.

On 11 October 2006 the Pskov Town Court of the Pskov Region extended the applicant ' s pre-trial detention until 14 November 2006. The applicant applied for release, referring to the seriousness of his condition and lack of medical assistance in the pre-trial detention facility. He also submitted medical documents indicating that he was in need of further examination and treatment at a specialised medical institution. The court decided that the applicant ' s ill-health did not render him unfit for detention.

On 8 November 2006 the Pskov Regional Court upheld the decision of 11 October 2006 on appeal. The applicant remained in detention pending investigation and trial.

On 18 January 2007 the Pskov Regional Court found the applicant guilty as charged and sentenced him to thirteen years ' imprisonment.

On 15 March 2007 the Supreme Court of Russia upheld the applicant ' s conviction on appeal.

2. Medical assistance

From 3 March 2006 to 18 January 2007 the applicant remained in custody pending investigation and consideration of the criminal charges against him. He was detained in remand prison no. 1 in Pskov . According to the documents submitted by the Government, the prison comprised a medical unit with qualified staff. The unit was licensed to carry out general treatment and therapy, lab testing, anaesthetics, intensive care, dentistry, psychiatric and substance abuse treatment, X-ray examination, ultrasonography , anti-tuberculosis treatment and surgery.

According to the medical file, the applicant received medical treatment and consultations as follows.

On 3 March 2006 he was examined by a general practitioner and had general tests, including fluorography and blood tests. Noting that the applicant ' s condition was typical of someone who had previously undergone spinal surgery, the doctor concluded that there was no need for any treatment.

On 25 August 2006 the applicant complained about regular pain around the surgical stitches and leg cramps. He was examined by the head of the medical unit who recommended a consultation with a neurologist.

On 27 September 2006 the applicant was examined by a general practitioner and a neurologist. The applicant complained of pain in the lumbar and thoracic regions. The doctors detected loss of sensitivity in his left leg, loss of mass in the right shin and partial paraparesis . The doctors prescribed pentoxyfilline , lucetam , cavinton , and diclofenac . The latter medication was not administered in view of the low severity of the pain. It was further recommended that the applicant undergo an X-ray examination and consult a neurosurgeon. The applicant received the remainder of the medication free of charge.

On 27 September 2006 the applicant had another fluorography.

On 28 September 2006 the applicant underwent an X-ray examination of the spinal cord.

On 12 October 2006 a regional hospital where the applicant had undergone treatment submitted certain medical documentation concerning the applicant ' s condition, including a medical certificate issued on 14 April 2006 by a district outpatient clinic and confirming that the applicant had undergone two operations on the spinal cord and that he was in need of further examination and another operation.

On 2 November 2006 the applicant was examined by a neurosurgeon from a regional hospital. He confirmed the earlier diagnosis, noting that the applicant ' s condition did not call for urgent surgery. He considered that, subject to the results of magnetic resonance imaging and computed tomography of the spinal cord, the applicant might require another operation on the spinal cord.

On 11 December 2006 the applicant was examined by an ophthalmologist.

On 12 December 2006 the remand prison prepared the documents necessary for the applicant ' s disability assessment.

On 26 December 2006 the Chief Medical Expert Bureau of the Pskov Region examined the applicant ' s medical file and classified his disability as “category three”. The applicant ' s appeal was to no avail.

B. Relevant domestic law

The 1995 Law on the conditions of detention of suspects and accused ( закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений » ) (as amended) provides that inmates are entitled to medical assistance (section 17). If an inmate ' s health deteriorates, the medical officers of the remand prison are obliged to examine him promptly and inform him of the results of the examination in writing. If the inmate requests to be examined by staff of other medical institutions, the administration of the detention facility is to organise such an examination. If the administration refuses, the refusal can be appealed against to a prosecutor or court. If an inmate suffers from a serious disease, the administration of the remand prison is obliged immediately to inform the prosecutor, who can carry out an inquiry into the matter (section 24).

COMPLAINTS

The applicant complained under Article s 6 and 13 of the Convention that the proceedings concerning his application for release had been unfair. In particular, he alleged that he should have been released pending investigation and trial because of his condition and the lack of adequate medical assistance in the pre-trial detention facility.

The applicant complained under Articles 2, 3 and 6 of the Convention that the domestic courts ignored his complaint about the lack of medical assistance in pre-trial detention.

THE LAW

The applicant complained under Article s 2, 3, 6 and 13 of the Convention that he had not received medical assistance while in pre-trial detention and that his complaint about the matter had been ignored by the domestic authorities. The Court considers that the complaints fall to be examined under Articles 3 and 13 of the Convention, which, in so far as relevant, read as follows:

Article 3

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

Article 1 3

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

1. The parties ' submissions

The Government contested the applicant ' s argument. Relying on the information contained in the applicant ' s medical file, they noted that he had received proper medical treatment on a regular basis. He had been examined by a general practitioner and medical professionals specialising in spinal cord problems. Contrary to the applicant ' s allegations, his condition had improved and he was no longer considered disabled. When serving his prison sentence, he participated in sports events and even ended up winning first place in an athletics competition. They further noted that the applicant had failed to bring his grievances to the attention of the competent domestic authorities. They suggested that it had been open to the applicant, should he have been refused access to medical aid or considered it inadequate, to lodge a relevant complaint with the administration of the remand prison, a prosecutor or a court as provided for in the applicable laws. The administration of the remand prison was under an obligation to provide him with access to medical services where necessary. Their failure to duly discharge their duties would have given rise to the applicant ' s right to monetary compensation.

The applicant maintained his complaints. He further submitted that on numerous occasions he had complained verbally to the administration of the remand prison about the lack of medical assistance. Besides, he had raised the issue in the court considering the issue of his pre-trial detention. As regards the athletic competition in the correctional colony, he specified that participation had been mandatory for all inmates and that he had won the pull-up competition.

2. The Court ' s assessment

The Court reiterates that the rule of exhaustion of domestic remedies obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. The rule is based on the assumption that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom , 7 December 1976, § 48 , Series A no. 24 ). At the same time, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant ' s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France ( dec .), no. 57220/00, § 15, ECHR 2002-VIII).

Turning to the circumstances of the present case, the Court observes that the applicant raised the issue of the alleged inadequacy of medical assistance only in the context of his requests for release pending trial and only as one of the grounds for his release, but not as a separate complaint to this effect brought, as suggested by the Government, to the attention of the administration of the remand prison, a prosecutor or a court.

In this connection, the Court reiterates that where the applicant ' s complaint stems not from a known structural problem, such as general conditions of detention, in particular overcrowding, but from an alleged specific act or omission by the authorities, the applicant must be required, as a rule, to exhaust domestic remedies in respect of it. The Court has already established that applicants complaining of a lack of medical assistance in Russia should raise their complaints with the competent domestic authorities, including the administration of the detention facility (see, among the most recent authorities, Popov and Vorobyev v. Russia , no. 1606/02, §§ 65-67 , 23 April 2009 ). In the case of Popov , the Court noted that, pursuant to applicable domestic laws, an inmate had the right to request that his or her medical examination be conducted by medical officers of other medical institutions and, if the administration of the detention facility refused to arrange such an examination, to appeal against that decision to the prosecutor or the court. The Court discerned no indication that such a remedy would have been ineffective in the circumstances of the applicants ' case. Accordingly, the Court did not find any grounds for absolving the applicants from the requirement of exhaustion of domestic remedies as regards the alleged lack of medical care.

Turning to the circumstances of the present case, the Court sees no reason to depart from its previous findings. The Court accepts the Government ' s assertion that the applicant did not complain to domestic authorities about the lack or inadequacy of the medical assistance and therefore did not afford them an opportunity to address the issue and, if appropriate, to remedy the situation.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

In so far as the applicant refers to Article 13 of the Convention , the Court, having regard to its conclusion concerning Article 3, finds that this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention separate issue arises under this provision.

For these reasons, the Court unanimously

D eclares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President