THIRD SECTION

CASE OF PASHKEVICH v. RUSSIA

( Application no. 8741/15 )

JUDGMENT

STRASBOURG

13 December 2016

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

In the case of Pashkevich 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 22 November 2016 ,

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

PROCEDURE

1 . The case originated in an application (no. 8741/15) 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 Vladimir Ivanovich Pashkevich (“the applicant”), on 18 March 2015 . Following the applicant ’ s death on 27 June 2016, his sister, Ms Valentina Ivanovna Basargina, informed the Court of her wish to pursue the application.

2 . The applicant , and later his sister , were represented by Mr S. Petryakov, a lawyer practising in Kazan. 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 applicant alleged , in particular, that the authorities had not secured his well-being in detention as they had failed to provide him with adequate medical care and to take account of his disability . He also argued that he had had no effective remedies to complain of a violation of his right s guaranteed by Article 3 of the Convention .

4 . On 3 September 201 5 the aforementioned complaints were communicated to the Government, and the remainder of the application was declared inadmissible. On the same day the Court granted priority to the application under Rule 41 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 1952 . Until his death in 2016 he was detained in correctional colony no. 14 in the village of Olovyannaya , Zabaykalsk Region .

A. Conviction

7 . On 29 January 2014 the Fokino Town Court of the Primorskiy Region convicted the applicant of murder and sentenced him to six and a half years ’ imprisonment. On the same day he was taken into custody.

B. Medical treatment in detention and the applicant ’ s complaints in this regard

8 . Prior to his detention the applicant sustained several spinal injuries an d lost the ability to walk unaided. Since 2013 he has been confined to a wheelchair.

9 . On his admission to a remand prison in January 2014, the applicant was given a general medical check-up by the doctor on duty , to whom he complained of lower back and joint pain. T he doctor provisionally diagnosed him with spinal tuberculosis. No drugs w ere prescribed .

10 . According to the applicant ’ s submissions, which were not disputed by the Government, he was put in an ordinary cell not equipped for wheelchair ‑ using detainee s . As a result he suffered various inconveniences , including restricted access the toilet .

11 . Several days later he was seen by a medical specialist, who amended his diagnosis to osteoporosis with compression fractures of two discs of the lumbar spine .

12 . In February 2014 he was examined by a neurologist, who noted that one of his diagnoses was paraplegia, impairment in motor function of the lower extremities. He was advised to undergo various medical examinations and tests, including magnetic resonance imaging (MRI) of the spine and a hip X -ray.

13 . In April 2014 a prison surgeon established that the osteoporosis affected not only the applicant ’ s spine, but also his legs. He was prescribed p ain relief medication and advised to undergo several medical tests.

14 . There is no information in the applicant ’ s file to suggest that the remand prison authorities gave him medication , an MRI scan or radiography. According to the applicant, even painkillers were unavailable in the remand prison .

15 . On 9 April 2014 the applicant was sent to serve his sentence in correctional colony no. IK-14/7 . On his arrival he was seen by a p rison doctor who, i n addition to the spinal and joint condition s , diagnosed him with coronary heart disease, angina pectoris and moderate hypertension disease. He was prescribed and provided with comprehensive dr ug t reatment .

16 . The Government did not provide any evidence to show that the correctional colony had any special facilities to accommodate wheelchair ‑ using prisoners.

17 . On 30 July 2014 the applicant was sent to prison hospital no. 1 in Chita, Zabaiykalsk Region, for an in-depth medical examination to establish whether he was entitled to ea rly release on medical grounds.

18 . A hip X -ray revealed that he suffered from an old displaced fracture of the cervical hip with full avulsion of the greater trochanter .

19 . On 27 August 2014 a specialist medical panel of the prison hospital concluded that the applicant was not eligible for early release, because none of his illness es w ere included in the governmental decree containing a list of illnesses precluding offender s from serving their sentence s . On the same da y the applicant was discharged from the prison hospital .

20 . On 2 October 2014 the Olovyannaya District Court dismissed the applicant ’ s application for early release, referring to the medical report of 27 August 2014. That decision was upheld on appeal by the Zabaiykalsk Regional Court on 16 December 2014.

21 . In the meantime the applicant lodged several complaints with the head of the prison medical authorities, the Federal Service for the Execution of Sentences and the Federal Supervisory Service for Healthcare and Social Development of the Russian Federation. T he latter authority found a shortcoming in the applicant ’ s treatment , namely a failure to ensure he was examined by a n orthopaedic traumatologist.

22 . On 25 March 2015 the applicant was seen by a traumatologist , who diagnosed him with an inguinal hernia and recommended surgery to be performed at a later date . The doctor also stated that he should be provided with a walking stick and a walking frame.

23 . Over the months that followed the applicant was regularly seen by prison doctors and provided with hypotensive drugs and pain relief drugs.

24 . In the meantime he brought a civil claim against the medical authorities seeking compensation for damage to his health caused by inadequate medical treatment .

25 . On 15 June 2015 the Central District Court of Chita dismissed the claim. Having looked at the list of medical services provided to the applicant , the court concluded that he had been afforded adequate medical treatment . It appears that no appeal followed.

26 . On 1 September 2015 a neurologist ordered the applicant ’ s admission to the prison hospital , which would involve a train journey. The applicant refused , arguing that prison train carriages were not equipped to transport wheelchair- using detainees.

27 . On 27 June 2016 the applicant died of a heart attack.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

28 . The relevant provisions of 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). I nternational documents on the detention of disabled inmates are cited in Semikhvostov v. Russia (no. 2689/12 , § 44, 6 February 2014).

29 . The provisions of domestic law establishing the legal a venues 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); Dirdizov v. Russia (no. 41461/10, §§ 47-61, 27 November 2012); and Koryak v. Russia (no. 24677/10, §§ 46-57, 13 November 2012).

THE LAW

I. PRELIMINARY CONSIDERATIONS: THE LOCUS STANDI OF THE APPLICANT ’ S SISTER

30 . The Court must first decide whether the applicant ’ s sister, Ms Valentina Ivanovna Basargina, can pursue the application lodged by her brother .

31 . The Government made no objections in that regard , leaving this issue for the Court to decide.

32 . The Court notes that it normally permits the next of kin to pursue an application, provided he or she has a legitimate interest, where the original applicant died after lodging the application with the Court (see Murray v. the Netherlands [GC], no. 10511/10, § 79, 26 April 2016; Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII; and Larionovs and Tess v. Latvia (dec.), nos. 45520/04 a nd 19363/05, § 172, 25 November 2014). Having regard to the subject matter of the application and all the information in its possession, the Court considers that the applicant ’ s sister has a legitimate interest in pursuing the application and that she thus has the requisite locus standi under Article 34 of the Convention (see Koryak , cited above, §§ 58-68 ).

II. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

33 . Relying on Article 3 of the Convention , the applicant complained that the authorities had disregarded his disability and had failed to provide him with a secure and proper environment and adequate medical treatment in detention. He also alleged that no effective domestic remedies for his grievances had been available to him. The Court considers that the complaints fall to be examined under Articles 3 and 13 of the Convention, which read as follows :

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Submissions by the parties

34 . The Government argued that the applicant had failed to raise his complaint before “prosecution bodies” or the court s . In the alternative, they stated that he had been provided with the required medical treatment . His health had been duly monitored by the detention authorities and no shortcomings in his medical treatment had been found.

35 . The applicant maintained his complaints. In particular, he argued that the authorities had failed to provide him with the prescribed medication, ensure that he saw a n orthopaedic traumatologist in a time ly manner and provide him with the recommended hernia repair surgery. He further alleged that it had been very difficult for him to move around in a wheelchair within the premises of the correctional colony , which was not equipped to accommodate disabled inmates.

B. The Court ’ s assessment

1. Admissibility

36 . The Court notes the Government ’ s objection that the applicant failed to exhaust domestic remedies , and considers that the issue is closely linked to the merits of hi s claim that there were none available for his grievances. It is therefore necessary to join the Government ’ s objection to the merits of his complaint under Article 13 of the Convention.

37 . 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 therefore be declared admissible.

2. Merits

(a) Compliance with Article 13 of the Convention

38 . The facts of the case show that the applicant complained to various authorities that he had had to endure hardship in detention (see paragraphs 21 and 24 above). He therefore attempted to draw their attention to his condition and to the quality of medical care he had been afforded in detention, which in his view had been inadequate. That alone has on many occasions been sufficient for the Court to dismiss an objection of non ‑ exhaustion by the Government (see, for instance, Ivko, cited above, § 85 , with further references).

39 . Furthermore, t he Court has on many occasions established that there are no effective domestic remedies in Russia to complain about the quality of medical treatment in detention or detention conditions (see, among many other authorities, Butrin v. Russia , no. 16179/14 , §§ 43-45, 22 March 2016; Khalvash v. Russia , no. 32917/13 , §§ 49-52, 15 December 2015 ; Patranin , cited above , § 86 ; Gorbulya v. Russia , no. 31535/09, §§ 56-58, 6 March 2014; Semikhvostov , cited above , §§ 61 ‑ 68 ; Reshetnyak , cited above , §§ 65 ‑ 73 ; Dirdizov , cited above, § 75; and Koryak , cited above, § § 86-93). In particular, in the aforementioned cases the Court held that none of the legal avenues suggested by the Government constituted an effective remedy to prevent the alleged violation or stop it from continuing, or to provide the applicant with adequate and sufficient r edress for his or her complaint under Article 3 of the Convention concerning the quality of medical treatment in detention and detention conditions .

40 . 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. Accordingly, it dismisses the Government ’ s objection of non-exhaustion of domestic remedies and finds that the applicant did not have at his disposal any effective domestic remedies for his complaints under Article 3 of the Convention .

(b) Compliance with Article 3 of the Convention

41 . At the outset the Court reiterates that where authorities decide to place and keep a person with a disability in detention they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Z.H. v. Hungary , no. 28973/11, § 29, 8 November 2012; Jasinskis v. Latvia , no. 45744/08, § 59, 21 December 2010; Farbtuhs v. Latvia , no. 4672/02, § 56, 2 December 2004; and Price v. the United Kingdom , no . 33394/96, § 30, ECHR 2001 ‑ VII).

42 . Turning to the circumstances of the present case, the Court observes that the applicant was suffering from a long-term disability, being confined to a wheelchair. The detention authorities were fully aware of his condition. However, as can be seen from the documents submitted, they never considered whether any special adjustments were required to alleviate the hardship s caused by his disability . It is not disputed by the Government that throughout his detention the applicant was kept in ordinary detention facilities, not equipped for wheelchair- using prisoner s . A s a result he experienced serious difficulties in meeting his most basic needs , such as using sanitary facilities or the stairs for several years .

43 . Taking into account the above, the Court considers that the authorities failed to ensure that the applicant ’ s well-being was adequately secured (see Topekhin v. Russia , no. 78774/13 , §§ 84-88 , 10 May 2016 ; Amirov v. Russia , no. 51857/13 , § 93, 27 November 2014 ; Semikhvostov , cited above, §§ 77 -86; and Asalya v. Turkey , no. 43875/09 , §§ 49-54 , 15 April 2014).

44 . In the light of the above the Court conclude s that the custodial authorities failed to discharge their obligations under Article 3 of the Convention and subjected the applicant to inhuman and degrading treatment. There has therefore been a violation of that Article.

I II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

45 . 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

46 . The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage.

47 . The Government left the issue to the Court ’ s discretion .

48 . The Court accepts that the applicant suffered distress and frustration on account of the violations of his rights under Articles 3 and 13 of the Convention. The resulting non-pecuniary damage would not be adequately compensated for by the mere finding of those breaches. Having regard to the particular circumstances of the case, the Court, making its assessment on an equitable basis, finds it appropriate to award EUR 15,000 in respect of non-pecuniary damage , to be paid in full to Ms Basargina, plus any tax that may be chargeable on that amount.

B. Costs and expenses

49 . The applicant did not claim compensation for costs and expenses. Accordingly, the Court makes no award in this respect.

C. Default interest

50 . 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 that the applicant ’ s sister, Ms Basargina , has locus standi in the proceedings;

2. Joins to the merits the Government ’ s objection as to the exhaustion of domestic remedies in respect of the applicant ’ s complaint under Article 3 of the Convention and rejects it;

3 . Declares admissible the complaints concerning the lack of adequate medical treatment in detention and the alleged absence of an effective domestic remedy in this connection ;

4 . Holds that there has been a violation of Article 13 of the Convention;

5 . Holds that there has been a violation of Article 3 of the Convention;

6 . Holds

(a) that the respondent State is to pay Ms Basargina , within three months , EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage , plus any tax that may be chargeable on that amount. This amount is 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 applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 13 December 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Branko Lubarda Deputy Registrar President