THIRD SECTION

CASE OF KOVALEV AND OTHERS v. RUSSIA

( Application no. 38777/04 and 5 others -

see appended list )

JUDGMENT

STRASBOURG

30 November 2017

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

In the case of Kovalev 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 9 November 2017 ,

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

PROCEDURE

1. The case originated in 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 that they did not receive adequate medical care in detention and that there was no effective remedy in that regard . Some applicants also raised other complaints under the provisions of 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. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

6. 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.”

7. 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.

8. 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 care 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 preventing 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).

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

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

11. The applicants 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 ...”

12. 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.

13. 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.

IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

14. In application no. 38777/04, the app licant complained under Article 6 § 1 of the Convention that he had been denied an opportunity to appear in person before a court in civil proceedings to which he was a party. This complaint raised an issue, in accordance with the relevant well-established case-law of the Court (see appended table). It is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 6 § 1 of the Convention in the light of its findings in Yevdokimov and Others v. Russia , nos. 27236/05 and 10 others, 16 February 2016.

V. REMAINING COMPLAINTS

15. In applications nos. 38777/04, 47875/13 and 53937/13, the applicants also raised other complaints under various Articles of the Convention.

16. The Court has examined the applications listed in the appended table and 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, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

VI . APPLICATION OF ARTICLE 41 OF THE CONVENTION

17. 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.”

19. 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. Declares the complaints concerning the failure of the authorities to provide the applicants with adequate medical care in detention , the complaints concerning the lack of effective remedies in this regard, and other complaints under the well-established law as set out in the appended table admissible, and the remainder of applications nos. 38777/04, 47875/13 and 53937/13 inadmissible;

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

4. 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;

5. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

6. Holds

(a) that the respondent State is to pay the applicants, 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. Dismisse s the remainder of the applicants ’ claim s for just satisfaction.

Done in English, and notified in writing on 30 November 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Luis López Guerra

Acting Deputy 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

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

38777/04

29/09/2004

Vitaliy Grigoryevich Kovalev

27/08/1972

Tuberculosis

belated medical inquiry into signs of tuberculosis

from 18/05/2002 to

17/11/2002

6 months

no drug susceptibility testing

f rom 17/11/2002 to 20/10/2008

(5 years, 11 months and

4 days)

Art. 6 (1) - absence of the detainee from civil proceedings concerning conditions of detention;

19/09/2006

Oktyabrskiy District Court of Rostov-on-Don;

a ppeal proceedings on 27/11/2006

Rostov Regional Court

15,000

68855/12

01/10/2012

Taras Aleksandrovich Radulov

05/03/1980

Markov Eduard

Valentynovych

Budapest

HIV

HIV

lack of immunological testing

from 12/08/2009 to

28/03/2011

(1 year, 7 months and

17 days)

lack of highly active antiretroviral therapy

from 12/08/2009 to 02/12/2011

(2 years, 3 months and

21 days)

15,000

2,900

to be paid into the bank account of the applicant ’ s representative,

Mr E. Markov

73964/12

11/10/2012

Timur Mushegovich Isayev

16/07/1982

Preobrazhenskaya

Oksana Vladimirovna

Moscow

advanced HIV (4B) with high viral load and tuberculosis

lack of antiretroviral therapy

from 12/01/2012 to 06/09/2012

(7 months and 26 days)

15,000

20988/13

01/02/2013

Mikhail Valentinovich Kiryukhin

22/01/1972

HIV

HIV

HIV

HIV

HIV

HIV

Varicose veins

lack of examination by an infectious disease specialist

from 09/10/2001 to 22/06/2007

(5 years, 8 months and

14 days)

lack of CD4 count

from 09/10/2001 to 31/08/2005

(3 years, 10 months and 23 days)

lack of antiretroviral therapy

from 31/08/2005 to 30/10/2006

(1 year, 2 months)

irregular examinations by an infectious disease specialist

from 22/06/2007 to 23/05/2015

(7 years, 11 months and 2 days)

delayed viral load testing

from 29/08/2011 to 05/03/2012

(6 months and 6 days)

delayed viral load testing

from 13/05/2013 to 26/11/2013

(6 months and 14 days)

lack of the prescribed surgery

from 14/02/2006 to

02/02/2015

(8 years , 11 months and 20 days)

0

47875/13

19/06/2013

Aleksey Vladimirovich Shelest

07/01/1979

Bezhanova Yelizaveta Mikhaylovna

Moscow

cancer (lymphatic leukaemia)

lack of additional medical examinations in respect of lymphatic leukaemia prescribed on 18/08/2011, or a consultation by a cancer specialist

from 18/08/2011 to 08/11/2013

(2 years 2 months and

22 days)

15,000

53937/13

19/07/2013

Eduard Vyacheslavovich Gubachev

01/01/1984

Markov Eduard Valentinovich

Budapest

HIV/AIDS

lack of antiretroviral therapy, regular CD4 count, or viral load tests

from 01/08/2012 pending

(more than 5 years, 2 months and

4 days)

15,000

1,970

to be paid into the bank account of the applicant ’ s representative,

Mr E. Markov.

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

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