THIRD SECTION

CASE OF BULAVA v. RUSSIA

(Application no. 62812/12)

JUDGMENT

STRASBOURG

25 July 2017

This judgment is final but it may be subject to editorial revision.
In the case of Bulava 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 Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 July 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 62812/12) 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 Sergey Petrovich Bulava (“the applicant”), on 6 September 2012.
2.  The applicant was represented by Ms A. Zheltyakova, a lawyer practising in Novosibirsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  The applicant alleged that the authorities had not secured his well‑being in detention as they had failed to provide him with adequate medical care. He also argued that he had had no effective remedies to complain of the quality of that treatment in detention.
4.  On 3 September 2013 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1965 in the Altay Region. He lives in Novosibirsk.
6.  At the relevant time the applicant was serving a prison sentence for aggravated robbery in correctional colony no. 21 in the Novosibirsk Region.
7.  On 20 January 2007 he complained to a prison doctor that he had started experiencing severe pain in the lower back after an accidental fall. The doctor diagnosed lumbar osteochondrosis and prescribed the standard treatment.
8.  The treatment proved to be ineffective. Thirty days later he was admitted to the correctional colony’s medical unit for a month-long course of inpatient treatment. According to the applicant, the unit did not employ the necessary medical specialists and did not have the equipment needed to treat his condition.
9.  Since there were no positive developments in the applicant’s health and the pain persisted, on 13 March 2007 he was taken to the regional prison hospital in Novosibirsk. He was seen by a neurologist, who diagnosed myelopathy, a neurological problem related to the spinal cord, accompanied with a mild dysfunction of the legs. The treatment regimen was amended, but his condition did not change. He was discharged from the hospital on 2 April 2007.
10.  On two occasions, between 20 April and 23 June 2007 and between 17 September and 2 November 2007, the applicant was treated in the correctional colony’s medical unit.
11.  On 28 November 2007 the applicant was certified as having a third‑degree disability.
12.  On 18 February, 25 August and 1 November 2008 the detention authorities applied to move him to Gaaza Prison Hospital in St Petersburg for “neurosurgical treatment”, but apparently received no reply.
13.  In the meantime, the applicant was sent back and forth between the medical unit and the prison hospital, mainly receiving medication for his symptoms. He developed paresis, a neurological condition of muscle weakness, in three of his limbs, and started using crutches.
14.  On 1 December 2008 a special medical board confirmed the applicant’s disability and ordered a magnetic resonance imaging examination (“MRI”), however, the detention facility had no funds to pay for it. After collecting enough money, the applicant had an MRI on 10 December 2009. It revealed an abnormal narrowing of the spinal canal. The applicant was prescribed conservative treatment.
15.  The treatment he received did not stop the illness’s progression and on 2 April 2010 he was certified as having a second-degree disability.
16.  In July 2010 the detention authorities applied for his admission to the spinal surgical unit of the Gaaza hospital. On 27 September 2010 their request was dismissed owing to the absence of a fresh MRI.
17.  On 6 December 2010 the applicant complained to the prosecutor of Novosibirsk Region about the failure of the medical authorities to duly apply for his transfer to the prison hospital. By a letter of 28 December 2010 the prosecutor supported the applicant’s allegations, noting that a prison official had already been disciplined for the failure to submit the applicant’s complete medical file to Gaaza Prison Hospital. The prosecutor ordered the detention authorities to apply for the applicant’s admission to the prison hospital.
18.  On 24 February 2011 the applicant was seen by the chief traumatology specialist of Novosibirsk Region, who prescribed spine surgery, an operation which was accessible through the quota system (for the applicable quota regulation see paragraph 28 below). On 1 March 2011 the hospital’s medical board asked the regional authorities to allocate a surgery quota to the applicant.
19.  On 9 September 2011 the detention authorities paid for an MRI for the applicant in a civilian hospital. On the basis of that examination, a civilian doctor confirmed three days later that spine surgery was required.
20.  In the meantime, the applicant brought a tort action with the Toguchinskiy District Court of Novosibirsk Region, complaining about the authorities’ failure to provide him with effective medical assistance, in particular, the required spine surgery.
21.  On 23 November 2011 the District Court dismissed the applicant’s claim, finding that he had been provided with the required medical assistance. As regards the subject of the claim, the alleged failure to perform spine surgery, the court noted that the authorities had already asked for a surgery quota to be allocated to the applicant.
22.  On 29 March 2012 the Novosibirsk Regional Court upheld the judgment on appeal and it became final.
23.  On 5 July 2012 the Novosibirsk Regional Court refused to reopen the case by way of a cassation appeal, affirming the lower courts’ decisions.
24.  On 7 November 2012 a special medical board at the Novosibirsk Research Institute of Traumatology and Orthopaedics, the regional medical authority in charge of quota distribution, refused to allocate one to the applicant. Conservative treatment was recommended.
25.  In 2012 and 2013 the applicant went to the prison hospital for several courses of inpatient treatment. No positive effect on his spine condition was recorded.
26.  The applicant was released on parole on 19 July 2013.
Article II.	II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW
27.  The relevant general 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).
28.  Order no. 1689н, issued on 28 December 2011 by the Russian Healthcare Ministry, regulates the procedure for admitting patients to treatment which requires the use of advanced technology. The doctor in charge of treating the person has to prepare medical documents for the allocation of a quota and should submit them to a hospital board, which, within three working days, has to render a decision as to whether the quota application should be forwarded to the regional authorities for a final decision (paragraphs 4-7). If the hospital board’s decision is positive, the patient’s medical file must be sent within the following three days to the regional authorities. Those authorities must make a decision on the quota allocation within ten days of receipt of the patient’s documents (paragraph 11).
29.  The provisions of domestic law establishing the 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); 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
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
30.  The applicant complained that the authorities had not taken any steps to safeguard his health and well-being by failing to provide him with adequate medical assistance for his spine condition. 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.”
Section 3.01	A.  Submissions by the parties
31.  The Government argued that the applicant had received adequate medical care while in detention. They stated that he had been under the supervision of various doctors, had regularly undergone the necessary medical tests and had received the full range of medical treatment. They also noted that the applicant’s health had not worsened in detention.
32.  The applicant submitted that the medical care he had received for his spine condition had been deficient, in particular because of the numerous delays in examinations and treatment. He underlined that his health had deteriorated significantly while in detention and that he had become disabled.
Section 3.02	B.  The Court’s assessment
(a)	1.  Admissibility
33.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b)	2.  Merits
(i)	(a)  General principles
34.  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 (cited above, §§ 91-95).
(ii)	(b)  Application of the general principles to the present case
35.  The Court observes that contrary to the Government’s submissions the applicant’s health deteriorated significantly in detention. He developed a serious medical condition associated with pain and weak limbs. He was certified as having a second-degree disability on account of that illness (see paragraph 15 above). The illness significantly affected his everyday functioning and he was likely to have experienced considerable anxiety as to whether the medical care provided to him was adequate.
36.  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 problem, which is the core of the case at hand.
37.  Turning to the substance of the applicant’s complaint, the Court observes that the most significant delay in his treatment related to the spine surgery he had been prescribed. It notes that the medical authorities apparently became aware of the ineffectiveness of his conservative treatment in 2008, when they applied for neurosurgical treatment in Gaaza Prison Hospital. In any event, spine surgery was clearly prescribed for the applicant by the chief specialist in traumatology of the Novosibirsk Region on 24 February 2011. However, the decision on whether the applicant could actually receive it was only taken on 7 November 2012, that is to say more than twenty months later.
38.  Although the Court is not prepared to criticise the existence of the quota system itself, which might be a temporary and induced response to difficulties surrounding access to complex, high-tech, modern treatment, it cannot overlook the very delayed response to the applicant’s medical needs, which manifestly exceeded the time-limits set by domestic regulations (see paragraph 28 above).
39.  Given the seriousness of the applicant’s condition and its negative evolution, the Court considers that it was unacceptable to delay the decision on the quota allocation for such a long period of time without any good reason. It notes that, firstly, the delay jeopardised the chances of the applicant’s treatment having any real prospect of success, and, secondly, it undermined the credibility of the final conclusions, which had to be built on outdated medical information. Thirdly, it impeded the assessment of other treatment strategies, and, lastly, the prolonged situation of uncertainty likely caused the patient serious mental suffering.
40.  In the light of the foregoing considerations, the Court finds that the applicant’s medical needs were not addressed in a timely manner. Accordingly, the medical treatment he received was not adequate and thus the applicant was left in a situation of fear and anxiety as to the prospects for his treatment on the background of a rapidly deteriorating condition. Consequently, the Court finds that there has been a violation of Article 3 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
41.  The applicant also claimed that he had not had at his disposal an effective remedy to complain about the violation of the guarantee against ill-treatment, 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 ...”
Section 4.01	A.  Submissions by the parties
42.  The Government submitted that the applicant had had effective domestic remedies at his disposal and that he had made use of them, in particular, by raising his grievances before the prosecutor and domestic courts.
43.  The applicant maintained his complaint.
Section 4.02	B.  The Court’s assessment
(a)	1.  Admissibility
44.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b)	2.  Merits
(i)	(a)  General principles
45.  For a summary of the relevant general principles see Litvinov v. Russia, no. 32863/13, §§ 73-77, 22 March 2016.
(ii)	(b)  Application of the general principles to the present case
46.  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; 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. 24677/10, §§ 86-93, 13 November 2012). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government, including a complaint to a prosecutor’s office or a court, constituted an effective remedy to prevent the alleged violations, stop them from continuing, or provide applicants with adequate and sufficient redress for complaints under Article 3 of the Convention.
47.  Having regard to the absence of any new arguments from the Government on 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 could have constituted an effective remedy for the applicant’s complaints under Article 3 of the Convention. Accordingly, the Court 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.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
48.  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.”
Section 5.01	A.  Damage
49.  The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage.
50.  The Government insisted that the applicant’s rights had not been violated and submitted that, in any event, the claim was excessive.
51.  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.
Section 5.02	B.  Costs and expenses
52.  The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.
Section 5.03	C.  Default interest
53.  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.  Declares the application admissible;

2.  Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical treatment in detention;

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 in detention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), in respect of non‑pecuniary damage, plus any tax that may be chargeable to him, 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;

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

Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Luis López Guerra
	Deputy Registrar	President