FIRST SECTION

DECISION

Application no . 49038/12 Vladimir Nikolayevich GUSEV against Russia

The European Court of Human Rights ( First Section ), sitting on 24 March 2015 as a Committee composed of:

Khanlar Hajiyev , President, Erik Møse , Dmitry Dedov , judges,

and André Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 1 March 2012 ,

Having regard to the comments submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Vladimir Nikolayevich Gusev , is a Russian national, who was born on 26 January 1953 and lives in the village of Ivanovskoye , Stavropol Region.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin , Representative of the Russian Federation at the European Court of Human Rights .

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

4. The applicant was arrested in January 2004. Following his conviction in December 2005, he was sent to serve the sentence of imprisonment to a correctional colony in the Stavropol Region.

5. According to the applicant, after his arrest he did not have any health problems until in July 2010 he started experiencing a severe pain in the lower back. He also suffered from leg cramps either at night or after physical exercise, such as a walk to the third floor of a colony dormitory.

6. The applicant was sent for treatment to the medical unit of the correctional colony, where a prison doctor diagnosed him with the varix dilatation in the right calf . He was given medicaments to treat his hypertension and prescribed a heparin ointment which he received from his sister. He was also offered to undergo inpatient treatment in the colony hospital.

7. On 14 October 2010 the applicant was taken to the colony hospital. Two weeks after the treatment had commenced the applicant started experiencing a serious pain in both legs. He could barely walk. Moreover, a large expanding blackish spot appeared on the surface of his left shank.

8. Two months later the applicant was sent to the Stavropol Regional prison hospital in correctional colony no. 3. H e was diagnosed with trophic ulcer as a necrotic defect. Additional treatment was introduced – an anti ‑ inflammatory ointment was applied and the applicant ’ s leg was bandaged. Daily changes of bandages were performed by an inmate nurse with a medical assistant observing.

9. According to the applicant, o n 9 February 2011 he was hastily discharged from the hospital despite the fact that he had an open untreated crus ulceration which continued expanding. He was admitted to the medical unit of the correctional colony. The applicant complained about the ineffective care given that the inflamed area was causing him severe pain and continued growing. In May 2011 he was sent to the prison hospital in colony no . 3 for “a surgical cleaning of the infected area”.

10. From 14 July to 5 December 2011 the applicant underwent treatment in the vascular surgical department of the Perm regional hospital. On his admission to the hospital he was diagnosed with the infected ulcerous necrotic defect measuring 25 centimeters in length and 10 centimeters in width and reaching the bone tissue of the shinbone. Hospital doctors concluded that given a serious lack of treatment, time had been lost and the applicant ’ s leg could not be saved. The ulcer could lead to the general sepsis. On 11 August 20 11 the applicant ’ s left leg was amputated at the hip. On 21 September 2011 he underwent another surgery, a lumbar sympathectomy on the right side.

11. On 22 November 2011 the Solikamsk Town Court authoris ed the applicant ’ s release on parole given his suffering from an “untreatable illness”. The court noted a long list of medical conditions from which the applicant suffered, including his amputated leg, and concluded that his state of health warranted his release.

12. On 29 December 2011 the applicant was declared permanently disabled.

13. On 26 August 2013 the applicant lodged an action against the Service for Execution of Sentences and the Russian Treasury seeking compensation for damage caused to his health as a result of the lack of proper medical assistance in detention. He provided the Court with a copy of his claim bearing a stamp of the Registry of the Kochubeyevskiy District Court of the Stavropol Region.

14. On 5 February 2014 the District Court dismissed the applicant ’ s tort action, having noted that the applicant ’ s complaints related to the period before 14 July 2011 when he had been transferred to the Perm regional hospital. There was no evidence that the applicant had not received necessary treatment throughout the entire period of his detention or that his amputation had resulted from the guilty actions of State officials.

15. As follows from the parties ’ submissions the applicant did not appeal against the District Court ’ s judgment and it became final.

COMPLAINT S

16. The applicant complained under Article 3 of the Convention about the lack of proper medical assistance in detention following his arrest and until his transfer to the Perm regional prison hospital on 14 July 2011 .

17. The applicant further complained under Article 13 of the Convention about the absence of an effective remedy to complain about the quality of the medical care in detention.

THE LAW

18. The Government first submitted that the applicant had only complained about the quality of the medical services afforded to him before 14 July 2011, the date of his transfer to the Perm regional prison hospital. He had been released from detention on 5 December 2011, by the decision of 22 November 2011. The Government stressed that, having only lodged his application with the Court on 1 March 2013, the applicant had therefore failed to comply with the six-month time-limit established by Article 35 § 1 of the Convention.

19. In their additional submissions, the Government amended their argument, having acknowledged that the applicant had lodged the application on 1 March 2012 and not on 1 March 2013. However, they still insisted that the applicant had lodged the complaints with the Court after the expiration of the six-month time-limit as his complaints had only related to the period before 14 July 2011. In the alternative, the Government argued that the complaint about the quality of the medical services should be dismissed for the failure to exhaust domestic remedies, as the applicant had failed to appeal against the judgment of 5 February 2014 by which his tort action against the penal authorities had been dismissed. The Government explained that a tort claim, as well as the complaint to the administration of the detention facility, the regional Service for Execution of Sentences and a prosecutor ’ s office, should be considered as an effective remedy capable of affording a claimant adequate redress.

20. The applicant maintained his complaints, having stressed that he had not received adequate medical attention in the detention facilities where he had stayed before 14 July 2011. He further noted that he had lodged his application with the Court on 1 March 2012.

21. The Court observes that the appl icant’s complaint under Article 13 of the Convention about the absence of effective domestic remedies is closely linked to the Government ’ s argument that the applicant had failed to exhaust domestic remedies in respect of his complaint of poor medical care. Thus, the Court finds it necessary to join the Government ’ s objection of non-exhaustion to the merits of the applicant ’ s complaint under Article 13 of the Convention.

22. The Court observes that it has already, on a number of occasions, examined, in detail, the effectiveness of various domestic remedies suggested by the Russian Government and/or employed by applicants in cases concerning alleged lack of adequate medical assistance in detention. In this respect, the Court has clearly distinguished between two situations. It has found that no effective remedies existed in Russia for applicants who complained of ongoing deterioration of their health in view of a lack of proper medical care in detention (see, among others, Koryak v. Russia , no. 24677/10 , § 95 , 13 November 2012 ; Dirdizov v. Russia , no. 41461/10 , § 91 , 27 November 2012 ; Reshetnyak v. Russia , no. 56027/10 , § 80 , 8 January 2013 ). At the same time, when applicants complained of the detention authorities ’ failure to provide them with adequate medical services when they no longer found themselves in the situation they complained about, the Court has stressed that a civil claim for damages was capable of providing redress in respect of that complaint and offered reasonable prospects of success (see Buzychkin v. Russia , no. 68337/01, § 83 , 14 October 2008 ; Shchebetov v. Russia , no. 21731/02 , § § 89-92 , 10 April 2012 ; Gadamauri and Kadyrbekov v. Russia , no. 41550/02 , § 34 , 5 July 2011 ). The applicant ’ s situation in the present cases falls under the latter category.

23. The Court observes that the applicant lodged the present application with the Court in March 2012, several months after he had been released from detention. Furthermore, after he had undergone a surgery in detention and had been declared disabled in December 2011, no further medical interference was required. In addition, the applicant only addressed his grievances to the period of his detention before 14 July 2011.

25. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Menteÿ and Others v. Turkey , 28 November 1997, § 89, Reports 1997 ‑ VIII).

26. The applicant ’ s dissatis faction with the judgment of the first-instance court does not in itself demonstrate that a tort action was an ineffective remedy for the purposes of Article 13 (see Murray v. the United Kingdom [GC], 28 October 1994, § 100, Series A no. 300 ‑ A, and Buzychkin v. Russia , cited above , § 74). The Court therefore does not see any reason to depart from its well-established approach (see Buzychkin v. Russia, § 84, cited above; Gadamauri and Kadyrbekov v. Russia , cited above , § § 34 and 36; Shchebetov v. Russia , cited above , § § 89-92 ) and concludes that the remedy available to the applicant satisfied the conditions laid down in paragraph 25 above. It follows that the complaint under Article 13 is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it must be rejected pursuant to Article 35 § 4.

27. Given the abovementioned finding, the Court further concludes that the applicant failed to exhaust domestic remedies with regard to his complaint about the poor quality of the medical assistance in detention. It follows that his complaint under Article 3 of the Convention must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 April 2015 .

André Wampach Khanlar Hajiyev Deputy Registrar President