71325/16

THIRD SECTION CASE OF KALMYKOV v. RUSSIA (Application no. 71325/16)             JUDGMENT   STRASBOURG 13 January 2022   This judgment is final but it may be subject to editorial revision. In the case of Kalmykov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:  Peeter Roosma, President,  Dmitry Dedov,  Andreas Zünd, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 9 December 2021, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 November 2016. 2.  Notice of the application was given to the Russian Government (“the Government”). THE FACTS 3.  The applicant’s details and information relevant to the application are set out in the appended table. 4.  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 ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 5.  The applicant complained that he was not afforded adequate medical treatment in detention. He further alleged that he had been detained and transported in inhumane conditions, particularly taking into account his state of health. 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.” Medical treatment in detention 6.  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. 7.  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) 8.  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. 9.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. Remainder of the applicant’s grievances under Article 3 of the Convention 10.  As regards the remaining complaints of the applicant under Article 3 of the Convention related to his conditions of detention and transport, the Court considers that in view of its findings in paragraphs 6-9 above, it is not necessary to examine separately the admissibility and merits of these grievances (see, for similar approach, Kuzhelev and Others v. Russia, nos. 64098/09 and 6 others, § 140, 15 October 2019; Magomedov and Others v. Russia, nos. 33636/09 and 9 others, § 103, 28 March 2017, and S.C. Britanic World S.R.L. v. Romania, no. 8602/09, § 50, 26 April 2016). ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 11.  The applicant also complained that no effective domestic remedies regarding the quality of the medical care in detention were available to him. His complaints fall 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 ...” 12.  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, cited above, §§ 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 applicant with adequate and sufficient redress for his complaints under Article 3 of the Convention. 13.  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 complaints, in breach of Article 13 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14.  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.” 15.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Kolesnikovich v. Russia, no. 44694/13, §§ 82-92, 22 March 2016, 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. 16.  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, Declares the complaints concerning the inadequate quality of the medical assistance in detention and the lack of any effective domestic remedy in that respect admissible and holds that there is no need to examine separately the remaining complaints under Article 3 of the Convention; Holds that this application discloses a breach of Article 3 of the Convention on account of the inadequate medical care in detention; Holds that this application discloses a breach of Article 13 of the Convention on account of the lack of an effective domestic remedy regarding complaints about the quality of the medical care in detention; Holds (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 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Peeter Roosma  Acting Deputy Registrar President     APPENDIX Application raising complaints under Articles 3 and 13 of the Convention (inadequate medical treatment in detention and lack of any effective remedy in domestic law) Application no. Date of introduction Applicant’s name Year of birth   Principal medical condition Shortcomings in medical treatment Dates Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 71325/16 12/11/2016 Anton Vladimirovich KALMYKOV HIV/AIDS Interruptions in highly active antiretroviral therapy, lack of/delay in medical examination, lack of/delay in medical testing   23/02/2015 to 01/06/2017 2 year(s) and 3 month(s) and 10 day(s) 15,000     [1] Plus any tax that may be chargeable to the applicant.