THIRD SECTION

CASE OF KUDRYAVTSEV v. RUSSIA

(Applications nos. 15407/19 and 20751/19 – see appended list)

JUDGMENT

STRASBOURG

13 October 2022

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

In the case of Kudryavtsev v. Russia,

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

Darian Pavli , President,

Andreas Zünd ,

Frédéric Krenc , judges, and Viktoriya Maradudina, Acting Deputy Section Registrar ,

Having deliberated in private on 15 September 2022,

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 applicant was represented by Ms Karina Moskalenko, a lawyer practising in Strasbourg.

3. Notice of the applications was given to the Russian Government (“the Government”).

THE FACTS

4. The list of the relevant details of the applications are set out in the appended table.

5. The applicant alleged that he did not receive adequate medical care in detention and that there was no effective remedy in that regard. He also raised other complaints under the provisions of the Convention.

THE LAW

6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

7. Following the death of the applicant, his son, Mr Yaroslav Viktorovich Kudryavtsev, expressed the wish to pursue the application. The Government objected noting that the rights claimed by Mr V. Kudryavtsev belonged to the category of non-transferrable rights. They asked the Court to strike the application out.

8. The Court reiterates that, in cases in which an applicant died after having lodged an application, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court. For the Court’s assessment of the person’s standing to maintain the application on behalf of a deceased, what is important is not whether the rights at issue are transferable to the heirs but whether the victim made a choice to exercise his or her right of individual application under Article 34 of the Convention by activating the Convention mechanism (see Ergezen v. Turkey , no. 73359/10, § 29, 8 April 2014). The Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). In this connection, the Court reiterates that human rights cases before it generally have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 XII).

9. In view of the above and having regard to the circumstances of the present case, the Court accepts that Mr Ya. Kudryavtsev has a legitimate interest in pursuing the application in the late applicant’s stead. It will therefore continue dealing with the case at his request. For convenience, it will, however, continue to refer to Mr V. Kudryavtsev as the applicant in the present judgment.

10. The applicant complained principally that he was not afforded adequate medical treatment in detention. He 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 applicant suffered from a serious medical condition, as indicated in the appended table, which affected his everyday functioning. Therefore, he could have experienced considerable anxiety as to whether the medical care provided to him 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 care are prompt and accurate (see, for example, Gorbulya v. Russia , no. 31535/09, § 62, 6 March 2014, with further references, and Pokhlebin v. Ukraine , no. 35581/06, § 62, 20 May 2010, 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, inter alia , Ukhan v. Ukraine , no. 30628/02, § 74, 18 December 2008, with further references, and 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, for instance, Sadretdinov v. Russia , no. 17564/06, § 67, 24 May 2016, with further references, and Konovalchuk v. Ukraine , no. 31928/15, § 52, 13 October 2016, with further references).

13. Having examined all the material submitted to it, the Court has identified the shortcomings in the applicant’s 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 Blokhin , cited above, §§ 120-50; Reshetnyak v. Russia, no. 56027/10, §§ 49-101, 8 January 2013; and Koryak v. Russia, no. 24677/10, §§ 70-110, 13 November 2012). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicant did not receive comprehensive and adequate medical care whilst in detention.

14. This complaint is therefore admissible and discloses a breach of Article 3 of the Convention.

15. The applicant also complained that no effective domestic remedies regarding the quality of the medical care in detention were available to him. His complaint falls 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, Reshetnyak, cited above, §§ 49-101, and Koryak , §§ 70-110). 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 applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention.

18. The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Dirdizov v. Russia , no. 41461/10, §§ 101-11, 27 November 2012, as regards lengthy pre-trial detention, and Klimov v. Russia , no. 54436/14, §§ 41-50, 4 October 2016, as regards the State’s failure to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court, in breach of its obligation under Article 34 of the Convention.

19. 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.”

20. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Kolesnikovich, cited above, §§ 82-92; 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 sum indicated in the appended table.

21. The Court further 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,

(a) that the respondent State is to pay the applicant, within three months, the amount 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Darian Pavli

Acting Deputy Registrar President

APPENDIX

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

(inadequate medical treatment in detention and lack of any effective remedy in this regard)

Application no.

Date of introduction

Applicant’s name

Year of birth

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

(in euros) [1]

15407/19

21/03/2019

and

20751/19

04/04/2019

Viktor Viktorovich KUDRYAVTSEV

Born in 1943

Died in 2021

Heir :

Yaroslav Viktorovich

KUDRYAVTSEV

1971Diabetes

lack of/delay in consultation by a specialist, lacking/delayed diet, lacking/delayed drug therapy, lack of/delay in medical testing

Art. 5 (3) - excessive length of pre-trial detention - during the period 20/07/2018 - 27/09/2019; Lefortovskiy District Court of Moscow, Moscow City Court;

1 year(s) and 2 month(s) and 8 day(s)

Art. 34 - hindrance in the exercise of the right of individual petition

- Failure to comply with the interim measure indicated under Rule 39 (dated 18/04/2019), namely, that the applicant should have immediately been examined by medical experts independent from the penitentiary system with a view of determining:

(1) whether the treatment which he was receiving was adequate with regard to his medical condition;

(2) whether he was receiving the necessary medication and supervision in detention; and

(3) whether his condition required his admission to a specialised medical hospital in Moscow.

The Government had to ensure that the applicant was immediately provided with medical treatment and supervision prescribed by the medical experts and/or ensure his transfer to an appropriate medical institution, should the medical experts concluded that the applicant’s medical condition and treatment required it. The Government had failed to comply with that interim measure.

19,500,

to be paid to Mr Ya. Kudryavtsev

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