THIRD SECTION

CASE OF BALKOV v. RUSSIA

( Application no. 33690/12 )

JUDGMENT

STRASBOURG

6 June 2017

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

In the case of Balkov v. Russia ,

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

Branko Lubarda , President, Pere Pastor Vilanova , Georgios A. Serghides , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 1 6 May 2017 ,

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

PROCEDURE

1 . The case originated in an application (no. 33690/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Ivanovich Balkov (“the applicant”), on 19 June 2012 .

2 . The applicant, who had been granted legal aid, was represented by Mr E. Markov, a lawyer practising in Strasbourg . The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin , the Representative of the Russian Federation to the European Court of Human Rights, and then by Mr A. Fedorov , Head of the Office of the Representative of the Russian Federation to the Court .

3 . The applicant alleged, in particular, that he had not receive d adequate medical treatment in detention and that he had not had at his disposal an effective domestic remed y via which to complain about the poor quality of the medical services he had received .

4 . On 19 February 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible , pursuant to Rule 54 § 3 of the Rules of Court .

5 . The Government objected to the examination of the application by a Committee. Having considered the Government ’ s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1965 . On 27 March 2009 the Leningrad Regional Court convicted him of murder and sentenced him to thirteen years and six months ’ imprisonment. Since January 2010 he has been serving the sentence in correctional colony no. IK-4, in F ornosovo , Leningrad Region.

7 . According to the applicant, his eyesight began deteriorating in 2008 . In September 2010 he complained about this to a resident colony doctor.

8 . Eight months later the applicant was examined by an ophthalmologist , who visited the detention facility . The doctor diagnosed an “almost mature” cataract of the right eye and a focal cataract of the left eye. An in-depth medical examination in a hospital was recommended.

9 . On 1 July 2011 the applicant was sent to a prison hospital for an examination by an ophthalmologist. The ophthalmologist confirmed the presence of cataract s on both eyes. He established that the patient had lost his vision in his right eye and prescribed c ataract surgery. It was noted that owing to the lack of intraocular lens es in stock and the overcrowding of the facility, the surgery would have to be performed later, in a “planned manner”.

10 . The applicant was sent back to the deten tion facility , the ophthalmologist having recommended that the applicant undergo another eye examination between January and March 2012.

11 . On 7 April 2012 the applicant complained about the quality of medical assistance he had received to the Federal Service for the Execution of Sentences in St Petersburg. His complaint was then referred to the medical unit of his detention facility, which dismissed it in a letter dated 25 April 2012, stating that the patient had been provided w ith medical assistance in full.

12 . In May 2012 the applicant was seen by the head of the medical unit and put on a waiting list for admission to the ophthalmological department of the prison hospital for a medical examination and eye surgery.

13 . O n 24 October 2013 the applicant was seen by an ophthalmologist. The doctor endorsed the advice that the applicant had received on 1 July 2011 and confirmed that he needed cataract surgery.

14 . On 14 January and 22 June 2014 the applicant underwent repeated eye examinations, which revealed that the cataract on his left eye was growing . The need for surgery was again noted . The surgery was performed in the prison hospital on 1 October 2014.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

15 . The relevant provisions of the domestic and international law on the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015).

16 . The provisions of domestic law establishing legal avenues for complaints about the quality of medical services are cited in the following judgments: Patranin v. Russia (no. 12983/14, §§ 86-88, 23 July 2015); Reshetnyak v. Russia (no. 56027/10, §§ 35-46, 8 January 2013); Dirdizo v v. Russia (no. 41461/10, §§ 47-61, 27 November); and Koryak v. Russia (no. 24677/10, §§ 46-57, 13 November 2012).

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE S 3 AND 13 OF THE CONVENTION

17 . The applicant complained that the authorities had failed to provide him with adequate medical assistance for his eye condition. He relied on Article 3 of the Convention, which reads:

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

18 . The applicant also claimed that he had not had at his disposal an effective remedy for complaining of the aforementioned violation, as required under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

A. Submissions by the parties

19 . The Government put forward two lines of argument. Firstly, they argued that the applicant ’ s claim should be rejected owing to the non ‑ exhaustion of domestic remedies. They stated that the applicant should have raised his complaint before the Russian authorities – in particular, before the detention administration, a prosecutor or a court – but that he had failed to do so. Secondly, they argued that he had been afforded adequate medical treatment and that he had eventually undergone eye surgery.

20 . The applicant maintained his complaints. He stated that he had not been regularly examined by an ophthalmologist and that his cataract surgery had been significantly delayed. He also alleged that he had had no effective remed y by which to complain about the in adequacy of the medical assistance that he had received in detention.

B. The Court ’ s assessment

1. Admissibility

21 . The Court notes that the Government raised an objection in respect of the non-exhaustion of domestic remedies by the applicant. This issue is closely linked to the merits of the applicant ’ s complaint about the absence of domestic remedies for his grievances. It is therefore necessary to join the Government ’ s objection to the merits of the complaint unde r Article 13 of the Convention.

22 . The Court further notes that the complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must th erefore be declared admissible.

2. Merits

(a) Compliance with Article 13 of the Convention

23 . The Court has on many occasions established that there is a lack of effective domestic remedies in Russia through which to complain about the poor 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 v. Russia , no. 32863/13, §§ 78-81, 22 March 2016 ; Navalnyy and Yashin v. Russia , no. 76204/11, § 106, 4 December 2014; Gorbulya v. Russia , no. 31535/09, §§ 56-58, 6 March 2014; Reshetnyak v. Russia , no. 56027/10, §§ 65-73, 8 January 2013; and Koryak v. Russia , no. 2 4677/10, §§ 86-93, 13 November 2012). In the aforementioned cases the Court established that none of the legal avenu es suggested by the Government constituted an effective remedy through which to prevent the alleged violations or to stop them from continuing, and to provide the applicant with adequate and sufficient redress for his or her complaints under Article 3 of the Convention.

24 . Having regard to the absence of any new arguments from the Government as regards the existence of effective remedies satisfying the requirements of Article 13 of the Convention in the present case, the Court cannot depart from its well-established case-law on the issue. It sees no legal avenues that would constitute an effective remedy for the applicant ’ s complaints under Article 3 of the Convention. Accordingly, the Court dismisses the Government ’ s objection of non-exhaustion of domestic remedies and finds that – in breach of Article 13 of the Convention – the applicant did not have at his disposal any effective dome stic remedies for his complaint regarding the quality of his medical treatment in detention.

(b) Compliance with Article 3 of the Convention

( i ) General principles

25 . The applicable general principles are set out in the cases of Blokhin v. Russia [GC] (no. 47152/06, §§ 135-40, ECHR 2016 ); Wenner v. Germany (no. 62303/13, §§ 54-58, 1 September 2016 ); and Ivko v. Russia (no. 30575/08, §§ 91-95, 15 December 2015).

(ii) Application of the above principles to the present case

27 . The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine ( Blokhin , cited above, § 137). It refers, among other things, to the promptness of the authorities ’ response to a patient ’ s health problems. Thus, the Court has already found a violation of Article 3 of the Convention on account of undue delay in respect of cataract surgery amount ing to one year and seven months (see Nogin v. Russia , no. 58530/08, §§ 92 and 98, 15 January 2015). A similar issue constitutes the core of the case at hand.

29 . Firstly, for a prolonged period of time the authorities remained idle. As can be seen from the case file, the consultation of 1 July 2011 revealed the need for eye surgery, yet the authorities took no steps to wards arranging it. The applicant was only put on a waiting list for the surgery in May 2012 (see paragraph 12 above) .

30 . Secondly, the applicant was not subjected to proper medical supervision in respect of his eye condition, which continued to deteriorate over time. Specifically , his eye examination, which should have been performed no later than March 2012, was delayed until late October 2013, that is to say for over twenty months (see paragraphs 10 and 13 above). No explanation for such a lengthy delay was given.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

32 . 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.”

A. Damage

33 . The applicant claimed 30 ,000 euros (EUR) in respect of non ‑ pecuniary damage .

34 . The Government insisted that the applicant ’ s rights had not been violated and submitted that, in any event, the claim was excessive.

35 . The Court, making its assessment on an equitable basis, awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

36 . The applicant claimed EUR 1,970 for legal expenses incurred before the Court in respect of his representation by Mr E. Markov , to be paid in to the latter ’ s bank account , and EUR 20 for postal services and photocopying , to be paid to the applicant.

37 . As regards the claim for legal expenses, the Government argued that these had not been necessary, given the simplicity of the case and the stage at which the applicant ’ s representative joined the proceedings. As regards the claim for postal services and photocopying, the Government argued that it was unsubstantiated.

38 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to t he documents in its possession , and bearing in mind the fact that the applicant was granted EUR 850 in legal aid for his representation before the Court, it considers it reasonable to award the sum of EUR 1,140 for costs and expenses incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant on that amount, of which EUR 1,120 is to be paid into the bank account of Mr E. Markov , the applicant ’ s representative, and EUR 20 to the applicant as reimbursement of his postal expenses.

C. Default interest

39 . 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. Joins the Government ’ s objection as to the alleged non-exhaustion of domestic remedies in respect of the appl icant ’ s complaint under Article 3 of the Convention about the quality of the medical care afforded to him in detention to the merits of his complaint un der Article 13 of the Convention , and rejects it;

2 . Declares the complaints concerning the inadequacy of the medical treatment in detention and lack of effective remedies through which to complaint about this grievance admissible;

3. Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy to complain about the lack of adequate medical assistance received in detention;

4 . Holds that there has been a violation of Article 3 of the Convention on account of the poor quality of the medical assistance in detention;

5 . Holds

(a) that the respondent State is to pay, within three months , the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 15,000 ( fifteen thousand euros) , plus any tax that may be chargeable, in respect of non- pecuniary damage , to be paid to the applicant ;

( ii) EUR 1,140 ( one thousand one hundred and forty euros), plus any tax that may be chargeable to the applicant , i n respect of costs and expenses , of which EUR 1,120 (one thousand one hundred and twenty euros ) , to be paid into the bank account of Mr E. Markov, the applicant ’ s representative, and EUR 20 (twenty euros) , to be paid to the applicant ;

(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;

6 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 6 June 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Branko Lubarda Deputy Registrar President