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FIRST
SECTION
CASE OF GADAMAURI AND KADYRBEKOV v. RUSSIA
(Application
no. 41550/02)
JUDGMENT
STRASBOURG
5 July
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gadamauri and
Kadyrbekov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 14 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41550/02) 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 Russian nationals, Mr Kuri Garsoltovich
Gadamauri and Mr Magomed Gadzhiyevich Kadyrbekov (“the
applicants”), on 4 November 2002.
- The Russian Government (“the Government”)
were initially represented by Ms V. Milinchuk, former Representative
of the Russian Federation at the European Court of Human Rights, and
subsequently by their representative Mr G. Matyushkin.
- On
12 December 2007 the President of the First Section decided to give
notice to the Government of the complaint raised by the first
applicant under Article 3 of the Convention regarding his delayed
hospitalisation whilst subject to police detention. It was also
decided (pursuant to former Article 29 § 3 of the
Convention) to rule on the admissibility and merits of the
application at the same time.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1942 and 1975 respectively and live in
Volzhskiy, a town in the Volgograd Region.
A. The circumstances of the applicants’ arrest
- On
15 September 1999 the applicants, a lawyer and a driver for a private
company, both of Chechen origin, were driving back from a business
trip when the first applicant felt extreme abdominal pain. He soon
felt feverish and dizzy. The applicants decided to stop in the town
of Saransk in the Republic of Mordoviya on their way and go to a
hospital.
- However,
in Saransk the applicants were stopped by the police (acting in the
course of a special operation named “Vikhr [Vortex] -
Anti-terror”), allegedly beaten up, handcuffed and brought to a
temporary detention centre at the Oktyabrskiy District police station
(ИВС Октябрьского
РОВД г. Саранска)
for identification purposes.
- On
16 September 1999 charges of hooliganism were brought against the
applicants.
- On
17 September 1999 the applicants’ detention was extended on
account of their alleged vagrancy and begging.
- On
the night of 17 September 1999 the applicants were transferred to a
Republic of Mordoviya Interior Ministry specialised detention centre
(приемник
распределитель
МВД
республики
Мордовия).
B. The first applicant’s operation and subsequent
developments
- According
to the first applicant, throughout his detention from 15 September
to 17 September 1999 he constantly asked for medical help.
However, the police officers refused his requests. Several times
during that period an ambulance was called for him, and the ambulance
doctors (among them doctor P.) confirmed that his state of health
required urgent hospitalisation and treatment.
- Finally,
on 18 September 1999 the first applicant, unconscious, was taken to
the city hospital (3-я
городская
больница
г. Саранска).
He was diagnosed with gangrenous perforated appendicitis
which had led to peritonitis and he underwent emergency surgery.
Throughout his stay in the hospital armed guards were posted at his
bedside and at the door to his room.
- According
to the Government, following the applicants’ transfer to the
specialised detention centre on 17 September 1999, an ambulance was
called for the first applicant upon his request. On 18 September
1999 the first applicant was hospitalised in the city hospital with a
diagnosis of “acute gangrenous perforated appendicitis”,
on which an operation was performed immediately.
- On
an unspecified date the charges against the applicants were dropped.
- On
30 September 1999 the second applicant was released.
- On
1 October 1999, prior to the expiration of the post-operative period,
the first applicant was allegedly forced to leave the hospital.
- The
first applicant was later diagnosed with ruptured sutures and other
post-operative complications which resulted in him having to undergo
several other operations and in his disability. The doctors concluded
that the exacerbation of the applicant’s illness and the
post-operative complications had been directly caused by his belated
hospitalisation and surgery.
- The
first applicant provided the Court with the documents listed below.
(i) A
medical assessment issued by surgeon D. from the Volzhskiy Town
Clinic no. 5 dated 28 January 2003, which reads as follows:
“[The applicant] ... is being monitored and [is]
periodically undergoing inpatient and outpatient treatment for his
condition resulting from acute gangrenous perforated appendicitis,
caecitis, seropurulent diffuse peritonitis and [an] appendectomy
complicated in the post-operative period by suture sinuses, adhesive
obstruction of [the] abdominal cavity and secondary bowel dyskinesia.
Analysing the [applicant’s] medical history and
[the] complications which he subsequently developed and which
fundamentally affected [his] health, it is possible to [understand]
the disease pattern.
On 15 September 1999 whilst under arrest in the
temporary detention centre at the Oktyabrskiy District police station
in Saransk, the Republic of Mordoviya, [the applicant] felt acute
abdominal pain. However, despite repeated examinations by the
ambulance doctors and their urgent requests for [the applicant’s]
hospitalisation in the surgical unit of Saransk town hospital due to
acute symptoms [pertaining to his] abdominal cavity and [the]
increasing deterioration of [his] state of health, the [applicant]
was not taken to hospital.
Only on 18 September 1999, in a serious condition, was
[he] taken to the surgical unit of Saransk Emergency Hospital and
urgently operated upon. The early post-operative period was
complicated by after-surgery wound disruption [and the] appearance of
suture sinuses in the abdominal cavity, which necessitated a surgical
procedure – a laparotomy [performed] on 9 February 2000 [...].
The latter part of the post-operative period was complicated by [the]
development of moderately severe peritoneal commissures in the
abdominal cavity [and] secondary bowel dyskinesia, as a result of
which within a short interval on 24 October 2002 and on 27 November
2002 [the applicant] was hospitalised in Volzhskiy Town Hospital no.
1 with adhesive obstruction.
From 12 February 2002 [the applicant] underwent a
[procedure to] establish [the extent of his] disability.
In view of the foregoing, it is possible to conclude
that the exacerbation of the [applicant’s] main disease [...]
resulting in complications [...] was directly caused by belated
surgical treatment and connected with [the] prevention by the police
officers of [the] provision to [the applicant] of timely medical
assistance.”
(ii) Notarized
statements with similar contents issued by surgeons D. of the
Volzhskiy Town Clinic no. 5 (dated 24 July 2003) and K. of the
Volzhskiy Town Hospital no. 1. (dated 21 July 2003).
(iii) Various
other medical documents confirming the applicant’s operations
and subsequent medical treatment.
C. The applicants’ attempt to have criminal
proceedings instituted against the police officers on account of
their unlawful arrest and the alleged violence used against them
- On 16 March 2000 the first applicant complained to the
Prosecutor’s Office of the Republic of Mordoviya of his and the
second applicant’s unlawful detention on 15 September 1999 and
alleged that violence had been used against them by the police
officers. The applicant made no specific complaints relating to his
allegedly belated hospitalisation for surgery.
- Following
an inquiry into the facts complained of by the first applicant, on 24
March 2000 the Prosecutor’s Office of the Republic of Mordoviya
refused to institute criminal proceedings against the police officers
in the absence of any indication that a criminal act had been
committed.
- On
8 July 2004 the inquiry materials were destroyed following the expiry
of the time-limit for their storage.
- On
19 September 2000 and 26 January 2001 the first applicant challenged
the lawfulness of the actions of the police officers before the
internal security department of the Ministry of the Interior of the
Republic of Mordoviya. The facts complained of were found to be
unsubstantiated.
- The
first applicant subsequently appealed against the refusal to
institute criminal proceedings to the Oktyabrskiy District
Prosecutor’s Office in Saransk, the Prosecutor’s Office
of the Republic of Mordoviya and to the Prosecutor General of the
Russian Federation. The results of their inquiries into the
applicant’s allegations were held to have not established the
grounds required for the institution of criminal proceedings against
the police officers.
D. Civil claim for compensation of damage
- On 20 September 2001 the applicants brought
proceedings against the Ministry of the Interior and the Federal
Treasury, seeking compensation for pecuniary and non-pecuniary damage
resulting from their unlawful detention and the first applicant’s
belated hospitalisation for surgery.
- On
18 April 2002 the Leninskiy District Court of Saransk partly granted
the applicants’ claims, declared that their arrest and
detention had been unlawful and awarded them 5,000 Russian roubles
each in respect of non-pecuniary damage. The court further concluded
that the applicants’ allegations of ill-treatment had not been
substantiated and that there had been no causal link between the
actions of the police and the surgical treatment received by the
first applicant.
- The
applicants appealed. The first applicant claimed, in particular, that
the District Court had failed to question the ambulance doctor, P.,
who had examined him and had insisted, in vain, on his urgent
hospitalisation. He further claimed that, although his condition had
not itself been caused by the actions of the police officers, the
severe impact on his health resulting from his belated
hospitalisation and surgery had undeniably been directly caused by
the actions of the police officers. He relied on the medical
documents contained in the case file outlining the complications he
had suffered after the first belated operation and also attesting to
the ensuing operations.
- On 23 July 2002 the Supreme Court of the Republic of
Mordoviya upheld the judgment on appeal.
II. RELEVANT DOMESTIC LAW
- Article 1064 § 1 of the Civil Code of the Russian
Federation provides that damage caused to a person or property of a
citizen shall be compensated in full by the tortfeasor. Pursuant to
Article 1069, a State agency or a State official shall be liable
to a citizen for damage caused by their unlawful actions or failure
to act. Such damage is to be compensated at the expense of the
federal or regional treasury. Articles 151 and 1099-1101 of the Civil
Code provide for compensation for non-pecuniary damage. Article 1099
states, in particular, that non-pecuniary damage shall be compensated
irrespective of any award for pecuniary damage.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE FIRST APPLICANT’S BELATED HOSPITALISATION FOR
SURGERY
- The
first applicant complained that while in detention he had been denied
urgent hospitalisation for surgical treatment of his acute
appendicitis, which denial had significantly damaged his health and
had amounted to inhuman and degrading treatment. He relied on Article
3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The Government considered that the first applicant had
failed to exhaust available domestic remedies and to comply with the
six-month rule for lodging his complaint before the Court. As regards
the issue of exhaustion, the Government explained that while the
applicant had complained to the Prosecutor’s Office and the
Ministry of the Interior of his and the second applicant’s
unlawful detention and of violence having been used against them by
the police officers, he had never actually raised the issue of the
alleged failure on the part of the police officers to allow his
hospitalisation for surgical treatment in due time. In any event, the
applicant had never challenged the refusal to institute criminal
proceedings against the police officers before the courts. The
Government further submitted that the applicant had failed to
substantiate his allegations: the medical assessment and the
statements by hospital doctors submitted by the applicant to the
European Court date from 2003 but had never been submitted to the
domestic courts. Besides, the evidence in question had, to a large
extent, been based on the applicant’s own account of events,
had appeared long after the circumstances complained of and had been
drawn up by doctors practicing in the Volgograd Region and not in
Saransk, where the applicant had undergone the operation. The
Government stressed that the domestic courts had not found the
applicant’s surgery to have been caused by the actions of the
police officers. The Government were unable to produce the records of
the applicant’s examinations by ambulance doctors between
15 September and 18 September 1999 requested by the Court,
the relevant documents having been destroyed on 9 January 2005
and 3 July 2006 due to the expiration of the time-limit for their
storage.
- The
applicant maintained his complaint. He insisted that the medical
documents furnished by him to the European Court had to be given due
consideration.
A. Admissibility
- The Court reiterates that the rule of exhaustion of
domestic remedies obliges those seeking to bring their case against a
State before it to first use the remedies provided by the national
legal system. The rule is based on the assumption that there is an
effective remedy available in respect of the alleged breach in the
domestic system, whether or not the provisions of the Convention are
incorporated into national law. In this way, it is an important
aspect of the principle that the machinery of protection established
by the Convention is subsidiary to the national systems safeguarding
human rights (see Handyside v. the United Kingdom, 7 December
1976, § 48, Series A no. 24). At the same time,
it is incumbent on the Government claiming non-exhaustion to satisfy
the Court that the remedy was an effective one available both in
theory and in practice at the relevant time – that is to say,
that it was accessible, capable of providing redress in respect of
the applicant’s complaints and offered reasonable prospects of
success (see Selmouni v. France [GC], no. 25803/94, §
76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00,
§ 15, ECHR 2002-VIII). The Court further reiterates that
the domestic remedies must be “effective” in the sense
either of preventing the alleged violation or its continuation, or of
providing adequate redress for any violation that has already
occurred (see Kudła v. Poland [GC], no. 30210/96, §
158, ECHR XI).
- Turning
to the circumstances of the present case, the Court observes that the
applicant chose not to seek the institution of criminal proceedings
against the police officers on account of the alleged denial of
timely medical assistance (see paragraphs 19 and 30 above). Instead,
he preferred to have recourse to a civil-law remedy afforded by
Russian law by suing the Ministry of the Interior and the Federal
Treasury for damages resulting, inter alia, from his belated
hospitalisation for surgery (see paragraphs 24-27 above).
- The
Court recalls that it has previously examined the issue of exhaustion
of domestic remedies in the comparable contexts of alleged lack or
refusal of medical care for, or deficiency in medical care provided
to, those held in State custody. For instance, in the case of
Buzychkin v. Russia the Court found that as the applicant was
no longer held in the detention facility where it was alleged that no
adequate medical assistance had been made available to him, a civil
claim for damages was capable of providing redress in respect of his
complaint and offered reasonable prospects of success (see Buzychkin
v. Russia, no. 68337/01, § 83, 14 October
2008). The Court further notes that in the case of Gladkiy v.
Russia (no. 3242/03, 21 December
2010) the applicant brought civil proceedings against a detention
facility and the Ministry of Finance, seeking compensation for damage
resulting from a denial of access to adequate medical services, and
the Government did not voice any objection as to
the non-exhaustion of domestic remedies by the applicant. Moreover,
in the case of Romokhov v. Russia (no. 4532/04,
16 December 2010) in which the applicant’s recourse to
proceedings for damages resulting from delayed and deficient medical
treatment while in detention proved to be successful, the Government
claimed that the applicant had ceased to be a “victim”
of the alleged breach of his rights under Article 3 of the
Convention.
- In
light of the foregoing, the Court considers that, by bringing a civil
claim for damages resulting from his belated hospitalisation for
surgery, the applicant afforded the domestic authorities ample
opportunity to address the relevant issues and to provide him with
adequate redress. The Government did not argue otherwise. The Court
therefore dismisses the Government’s objection of
non-exhaustion.
- Having
found that the tort action brought by the applicant was an effective
remedy within the meaning of Article 35 § 1 of the
Convention, the Court notes that the final decision for the purpose
of the calculation of the six-month time-limit was taken by the
Supreme Court of the Republic of Mordoviya on 23 July 2002.
Given the fact that the applicant lodged his application with the
Court on 4 November 2002, the applicant has therefore complied
with the six-month time-limit and the Government’s objection to
the contrary should be dismissed.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention and
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. General principles
- The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of democratic societies.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim’s behaviour (see Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV).
- It also reiterates that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3. The assessment of this minimum is relative; it depends on
all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim (see, among other
authorities, Ireland v. the United Kingdom,
18 January 1978, § 162, Series A no. 25).
- Ill-treatment that attains such a minimum level of
severity usually involves actual bodily injury or intense physical or
mental suffering. However, even in the absence of these, where
treatment humiliates or debases an individual, showing a lack of
respect for or diminishing his or her human dignity, or arouses
feelings of fear, anguish or inferiority capable of breaking an
individual’s moral and physical resistance, it may be
characterised as degrading and also fall within the prohibition of
Article 3 (see Pretty v. the United Kingdom, no. 2346/02,
§ 52, ECHR 2002-III, with further references). Although the
question of whether the purpose of the treatment was to humiliate or
debase the victim is a factor to be taken into account, the absence
of any such purpose cannot conclusively rule out a finding of
violation of Article 3 (see Peers v. Greece, no. 28524/95,
§ 74, ECHR 2001-III).
- In the context of deprivation of liberty the Court has
consistently stressed that, to fall under Article 3, the suffering
and humiliation involved must in any event go beyond that inevitable
element of suffering and humiliation inherent in detention (see, most
recently, Pakhomov v. Russia, no. 44917/08,
§ 60, 30 September 2010, with further references).
- The
Court has also emphasised the right of all prisoners to conditions of
detention which are compatible with respect for human dignity, that
the manner and method of the execution of a measure must not subject
them to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention and that, given
the practical demands of imprisonment, their health and well-being
must be adequately secured by, among other things, providing the
requisite medical assistance (see Kudła v. Poland [GC],
cited above, §§ 92-94, and, most recently, Ashot
Harutyunyan v. Armenia, no. 34334/04, § 104,
15 June 2010). The fact that a detainee needed and requested
such assistance but it was unavailable to him may, in certain
circumstances, suffice to reach a conclusion that such treatment was
degrading within the meaning of Article 3 of the Convention (see
Ashot Harutyunyan, cited above, § 114, and
Sarban v. Moldova, no. 3456/05, §§ 86-87
and 90, 4 October 2005).
2. Application of these principles in the present case
- In
the present case, the Court notes, first of all, that it is
undisputed by the parties that on 18 September 1999 the first
applicant, in a serious medical condition, was taken from the
Interior Ministry detention centre to the Saransk City Hospital,
where he underwent emergency surgery for acute gangrenous perforated
appendicitis.
- What
the parties disagree on, and what appears to lie at the core of the
case at hand, is whether the first applicant’s hospitalisation
took place as soon as his health complaints had been confirmed by the
ambulance doctors, or whether such hospitalisation only came about
after the applicant’s state of health had significantly
deteriorated.
- According
to the first applicant, from the moment of his arrest on 15 September
1999 until his urgent hospitalisation on 18 September 1999, he
had persistently complained of acute abdominal pain and had asked for
medical help. He maintained that he had been examined by ambulance
doctors (including doctor P.) on several occasions, but that
notwithstanding the doctors’ opinion favouring urgent
hospitalisation and treatment, the police officers had left him
unassisted, in severe pain, until he had lost consciousness.
- According
to the Government, an ambulance had only been called for the first
applicant once, following his request on 17 September 1999, and he
had been hospitalised in the city hospital the following day
whereupon he had undergone an emergency appendectomy.
- The
Court observes that, despite its request, the Government were unable
to provide the records of the applicant’s examinations by
ambulance doctors in the period between 15 September and
18 September 1999, claiming that the relevant documents had been
destroyed prior to communication of the present case owing to the
expiration of the time-limit for their storage.
- The
Court observes that in certain instances the respondent Government
alone have access to information capable of firmly corroborating or
refuting allegations under Article 3 of the Convention and that a
failure on a Government’s part to submit such information
without a satisfactory explanation may give rise to the drawing of
inferences as to the well-founded nature of the applicant’s
allegations (see Khudoyorov v. Russia, no. 6847/02,
§ 113, ECHR 2005 X (extracts), and, most recently,
Vladimir Krivonosov v. Russia, no. 7772/04, § 88,
15 July 2010).
- Even
assuming that in the present case the domestic authorities’
failure to submit the above documentation had been properly accounted
for (see Shcherbakov v. Russia,
no. 23939/02, § 77,
17 June 2010, and Novinskiy v. Russia,
no. 11982/02, § 102,
10 February 2009), the Court cannot however accept the
unsupported statements by the domestic authorities as sufficiently
conclusive, as they do not appear to be based on any objective data.
The Court further notes, with regret, the domestic court’s
disregard of the applicant’s request that ambulance doctor P. –
who examined the applicant – be questioned.
- The
Court observes, on the other hand, that the first applicant’s
account of events is corroborated by the second applicant and, in a
way, by the Government’s own submissions, from which it follows
that, having being examined by the ambulance doctors on 17 September
1999, the applicant had not been taken to hospital until the
following day. It is therefore inclined to accept the first
applicant’s account of events to the effect that, despite the
urgent nature of his state of health and the risks associated with
it, as confirmed by ambulance doctors, the applicant was denied
timely hospitalisation for surgical treatment. It remains, therefore,
to be ascertained whether this amounted to ill-treatment of a level
exceeding the
threshold required to fall within the scope of Article 3 of the
Convention.
- The
Court notes that, as already indicated above, the applicant was
clearly in need of urgent surgical treatment, which was, however,
denied to him over the first days of his detention until his state of
health had significantly deteriorated. In the Court’s opinion,
this clearly aroused in the applicant, along with intense physical
pain, feelings of fear, anguish and inferiority which went far beyond
the inevitable element of suffering and humiliation inherent in
detention, especially bearing in mind that in the applicant’s
case such detention was found to have been unlawful.
- Having
regard to the foregoing, the Court considers that by leaving the
applicant to suffer acute physical pain resulting from his condition
and failing to follow up in a timely manner the doctors’
recommendation for urgent hospitalisation, the police subjected the
first applicant to inhuman and degrading treatment within the meaning
of Article 3 of the Convention.
- The
Court therefore finds that there has been a violation of that
provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Both
applicants further complained under Articles 3, 5, 6, 13 and 14 of
the Convention of: violence being used against them by the police
officers; their arrest and detention being unlawful; an inadequate
amount of compensation being awarded by the domestic courts; the
overall unfairness of the proceedings for damages; the absence of
effective domestic remedies with regard to the alleged violations;
and discrimination by the domestic authorities against them on the
basis of their Chechen origin.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that there is
no appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols. It follows that this part of the
application must be rejected as manifestly ill-founded, pursuant to
Article 35 §§ 3 (a) and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
first applicant claimed 597,000 Russian roubles (RUB) in respect of
pecuniary damage (lost wages for September and October 1999 and
medical expenses) and 200,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that there had been no causal link between the
alleged violation and the pecuniary damage claimed by the first
applicant. They further submitted that the claim in respect of
non-pecuniary damage was excessive and that the finding of a
violation would in itself constitute sufficient just satisfaction.
- The
Court points out that there must be a clear causal connection between
the pecuniary damage claimed by the applicant and the violation of
the Convention and that this may, in an appropriate case, include
compensation in respect of loss of earnings or other sources of
income (see, amongst other authorities, Barberà, Messegué
and Jabardo v. Spain (Article 50), 13 June 1994, §§ 57-58,
Series A no. 285-C, and Çakıcı v. Turkey
[GC], no. 23657/94, § 127, ECHR 1999-IV).
- As
regards the first applicant’s claim for damage concerning the
loss of salary and medical expenses incurred as a result of the
violation of his right not to be subjected to inhuman and degrading
treatment, the Court notes that he did not furnish any documents
which could have permitted the Court to assess the alleged pecuniary
loss. The Court therefore considers that he has failed to properly
substantiate his claim for pecuniary damage and accordingly dismisses
it (see Romokhov, cited above, § 142; Vladimir
Romanov v. Russia, no. 41461/02, § 116, 24 July
2008; and Necdet Bulut v. Turkey, no. 77092/01,
§ 33, 20 November 2007).
- In
so far as the non-pecuniary damage is concerned, the Court notes that
it has found a serious violation of the first applicant’s right
under Article 3 not to be subjected to inhuman or degrading
treatment. In these circumstances, the Court
considers that the first applicant’s suffering and frustration
cannot be compensated for by a mere finding of a violation. Making
its assessment on an equitable basis, the Court awards the applicant
EUR 30,000 in respect of non-pecuniary damage, plus any tax that may
be chargeable on this amount.
B. Costs and expenses
- The
applicants also claimed the equivalent of EUR 120 for postal
expenses.
- The
Government submitted that the costs and expenses claimed by the
applicant should be included in an award under Article 41 of the
Convention only in so far as it has been shown that these were
actually and necessarily incurred and reasonable as to quantum.
- Regard
being had to the above criteria established by the Court and restated
by the Government, and the documents in its possession, the Court
considers it reasonable to award the first applicant the sum of
EUR 120 covering his postal expenses, plus any tax that may be
chargeable to the applicant on that amount.
C. Default interest
- 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
- Declares the complaint under Article 3
concerning the first applicant’s belated hospitalisation for
surgery admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on that account;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 30,000 (thirty thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, and EUR 120 (one
hundred and twenty euros) in costs and expenses, plus any tax that
may be chargeable to the applicant, to be converted into Russian
roubles 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 5 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
