CASE OF GADAMAURI AND KADYRBEKOV v. RUSSIA

FIRST SECTION

CASE OF GADAMAURI AND KADYRBEKOV v. RUSSIA

(Application no. 41550/02)

JUDGMENT

STRASBOURG 

5 July 2011

FINAL

28/11/2011

This judgment has become final under Article 44 § 2 (c) 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

1. 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.

2. 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.

3. 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.

4. 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

5. 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

6. 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.

7. 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.

8. On 16 September 1999 charges of hooliganism were brought against the applicants.

9. On 17 September 1999 the applicants’ detention was extended on account of their alleged vagrancy and begging.

10. 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

11. 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.

12. 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[1] 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.

13. 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.

14. On an unspecified date the charges against the applicants were dropped.

15. On 30 September 1999 the second applicant was released.

16. On 1 October 1999, prior to the expiration of the post-operative period, the first applicant was allegedly forced to leave the hospital.

17. 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.

18. 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

19. 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.

20. 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.

21. On 8 July 2004 the inquiry materials were destroyed following the expiry of the time-limit for their storage.

22. 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.

23. 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

24. 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.

25. 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.

26. 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.

27. On 23 July 2002 the Supreme Court of the Republic of Mordoviya upheld the judgment on appeal.

II. RELEVANT DOMESTIC LAW

28. 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

29. 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.”

30. 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.

31. 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

32. 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).

33. 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).

34. 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.

35. 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.

36. 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.

37. 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

38. 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).

39. 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).

40. 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).

41. 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).

42. 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

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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).

49. 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.

50. 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.

51. 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.

52. 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.

53. The Court therefore finds that there has been a violation of that provision.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

54. 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.

55. 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

56. 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

57. 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.

58. 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.

59. 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).

60. 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).

61. 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

62. The applicants also claimed the equivalent of EUR 120 for postal expenses.

63. 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.

64. 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

65. 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 complaint under Article 3 concerning the first applicant’s belated hospitalisation for surgery admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention on that account;

3. 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;

4. 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 NielsenNina Vajić
RegistrarPresident

[1]Appendicitis is a condition characterized by inflammation of the appendix. It is classified as a medical emergency and many cases require removal of the inflamed appendix, either by laparotomy or laparoscopy. Untreated, mortality is high, mainly because of peritonitis and shock.

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