THIRD SECTION

CASE OF KOLESNIKOV AND OTHERS v. RUSSIA

( Application no. 35105/10 and 3 others –

see appended list )

JUDGMENT

STRASBOURG

8 February 2018

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

In the case of Kolesnikov and Others v. Russia ,

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

Luis López Guerra, President, Dmitry Dedov , Jolien Schukking , judges , and Liv Tigerstedt Acting Deputy Section Registrar ,

Having deliberated in private on 18 January 2018 ,

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

PROCEDURE

1. The case originated in four 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. The applications were communicated 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, in particular, that they did not receive adequate medical care in detention. Some applicants also raised other complaints under the Convention .

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. THE LOCUS STANDI ISSUE FOR APPLICATIONS NOS. 35105/10 AND 17534/16

6. The applicant, Mr Kolesnikov , (application no. 35105/10) died while the case was pending before the Court. The applicant ’ s widow, Ms Ella Vladimirovna Kolesnikova , his son, Mr Aleksandr Vasilevich Kolesnikov , and his daughter, Ms Ekaterina Vasilyevna Kolesnikova , expressed their intention to pursue the application. The Government objected to the request, having argued that it was belated.

7. The applicant, Ms Bukhteyeva (application no. 17534/16), also died while her case was being examined by the Court. Her brother, Mr Mikhail Valentinovich Bukhteyev , wished to pursue the application on her behalf. The Government did not object.

8. The Court considers that the applicants ’ relatives have a legitimate interest in obtaining the findings of the violations of the Convention alleged by the late applicants (see Ivko v. Russia , no. 30575/08 , § 70, 15 December 2015, with further references; Ressegatti v. Switzerland , no. 17671/02, §§ 23-25, 13 July 2006; Marie-Louise Loyen and Bruneel v. France , no. 55929/00, §§ 29-30, 5 July 2005). The Government ’ s objection is not valid given that Mr Kolesnikov died while the proceedings were pending before the Court.

9. Accordingly, the Court decides that Ms Ella Vladimirovna Kolesnikova , Mr Aleksandr Vasilevich Kolesnikov , and Ms Ekaterina Vasilyevna Kolesnikova have standing to continue the proceedings in respect of application no. 35105/10 on behalf of late Mr Kolesnikov , and Mr Mikhail Valentinovich Bukhteyev has standing to continue the proceedings in respect of application no. 17534/16 introduced by late Ms Bukhteyeva .

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

10. 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.”

11. 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.

12. 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 ca re are prompt and accurate (see Gorbulya v. Russia , no. 31535/09, § 62, 6 March 2014, 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 pr eventing their aggravation (see 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 Sadretdinov v. Russia , no. 17564/06, § 67, 24 May 2016, with further references).

13. 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 , for example , Semenova v. Russia , no. 11788/16, §§ 47-52, 3 October 2017, concerning the lack of adequate treatment for cervical cancer; Balkov v. Russia , no. 33690/12, §§ 26-31, 6 June 2017, concerning belated cataract surgery; E.A. v. Russia , no. 44187/04 , §§ 63-65, 23 May 2013, concerning inadequate HIV treatment; and Mkhitaryan v. Russia , no. 46108/11 , § 76 , 5 February 2013, concerning the authorities ’ failure to provide the applicant with urgent heart surgery). 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.

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

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

15. The applicants in applicatio ns nos. 70164/14, 44068/15, and 17534/16 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 ...”

16. 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, Urazov v. Russia , no. 42147/05, §§ 66 ‑ 70, 14 June 2016; Makshakov v. Russia , no. 52526/07, §§ 86-89, 24 May 2016; Litvinov , cited above, §§ 78 ‑ 81; Gorbulya , cited above, §§ 56 ‑ 58; Reshetnyak v. Russia , no. 56027/10, §§ 65 ‑ 73, 8 January 2013; and Koryak v. Russia , no. 24677/10, §§ 86 ‑ 93, 13 November 2012). 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.

17. 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.

V. REMAINING COMPLAINT

18. In application no. 17534/16, the applicant also raised a complaint concerning her detention conditions.

19. Having examined the complaint, the Court 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, this complaint do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention. It follows that the relevant part of the application must be rejecte d in accordance with Article 35 § 4 of the Convention.

VI . APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. 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.”

21. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Kolesnikovich , cited above, §§ 82-92, 22 March 2016; 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. In application no. 35105/10 the applicant submitted no claims for just satisfaction and the Court therefore sees no reason to make an award.

22. The Court 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. Decides that Ms Ella Vladimirovna Kolesnikova , Mr Aleksandr Vasilevich Kolesnikov , and Ms Ekaterina Vasilyevna Kolesnikova , respectively, the widow, son and daughter of the applicant in application no. 35105/10, and Mr Mikhail Valentinovich Bukhteyev , the brother of the applicant in application no. 17534/16, has locus standi in the proceedings;

3. 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 that regard admissible, and the remainder of application no. 17534/16 inadmissible;

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

5. 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;

6 . Holds

(a) that the respondent State is to pay the applicants, and in relation to application no. 17534/16 Mr Mikhail Valentinovich Bukhteyev , 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.

7 . Dismisses the remainder of the applicants ’ claims for just satisfaction.

Done in English, and notified in writing on 8 February 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Luis López Guerra Acting D eputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 and Article 13 of the Convention

( inadequate medical treatment in detention and lack of any effective remedy in domestic law )

No.

Application no.

Date of introduction

Applicant name

Date of birth

Representative name and location

Principal medical condition

Shortcomings in medical treatment

Dates

Amoun t awarded for pecuniary and non ‑ pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

35105/10

21/06/2010

Vasiliy Aleksandrovich Kolesnikov

14/10/1966

Nonna Stepanovna Frolova

Rostov-na-Donu

osteomyelitis of the left foot with suppuration in the tarsus

lack of urgent bone surgery

from 06/05/2009 to 30/12/2011

2 years, 7 months, and 25 days

0

0

70164/14

05/06/2013

Aleksandr Borisovich Belevitin

22/11/1959

Olga Pavlovna Tseytlina

St Petersburg

cataract

lack of eye surgery prescribed on 29/04/2011

from 01/06/2011 to 28/11/2013

2 years, 5 months, and 18 days

15,000

430cholelithiasis

lack of urgent surgery (cholecystectomy) prescribed on 22/05/2013

from 22/05/2013 to 29/01/2014

8 months, and 8 days

symptoms of chondroma (benign cartilaginous tumor )

lack of examination by a cancer specialist prescribed on 15/06/2011

from 15/06/2011 to 29/01/2014

2 years, 7 months, and 15 days

44068/15

26/10/2015

Yelena Anverovna Paltseva

31/12/1970

Sergey Ivanovich Petryakov

Kazan

HIV (IV stage)

lack of antibody tests, or molecular plasma examination necessary under domestic law in such cases

from 12/07/2011 to 14/09/2015

4 years, 2 months, and 3 days

lack of regular blood count tests necessary under domestic law in such cases

from 12/07/2011 to 28/04/2016

4 years, 9 months, and 17 days

lack of regular CD4 and CD8 count tests necessary under domestic law in such cases

from 12/07/2011 to 28/04/2016

4 years, 9 months, and 17 days

7 episodes of unjustified changes in antiretroviral therapy

from 04/07/2013 to 02/02/2016

2 years, 6 months, and 30 days

lack of examination by an infectious disease specialist

from 12/07/2011 to 08/10/2012

1 year, 2 months, and 27 days

15,000

1,500

17534/16

01/04/2016

Mariya Valentinovna Bukhteyeva

20/04/1987

Sergey Ivanovich Petryakov

Kazan

cervical carcinoma

lack of effective painkillers, or curative treatment

from 01/07/2015 to 06/04/2016

9 months, and 6 days

15,000

2,000

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

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