THIRD SECTION
CASE OF MELESHCHENKO AND OTHERS v. RUSSIA
(Applications nos. 2301/19 and 8 others –
see appended list)
JUDGMENT
STRASBOURG
13 October 2022
This judgment is final but it may be subject to editorial revision.
In the case of Meleshchenko and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Andreas Zünd,
Frédéric Krenc, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 15 September 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. Notice of the applications was given to the Russian Government (“the Government”).
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard. Some applicants also raised other complaints under the provisions of the Convention.
THE LAW
JOINDER OF THE APPLICATIONS5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
AS TO LOCUS STANDI OF Mr K. MISHCHENKO (APPLICATION No. 25916/20)6. Following the death of the applicant, Igor Vladimirovoch Mishchenko, his son, Mr Kirill Igorevich Mishchenko, expressed the wish to pursue application no. 25916/20.
7. The Court reiterates that, in cases in which an applicant died after having lodged an application, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court. For the Court’s assessment of the person’s standing to maintain the application on behalf of a deceased, what is important is not whether the rights at issue are transferable to the heirs but whether the victim made a choice to exercise his or her right of individual application under Article 34 of the Convention by activating the Convention mechanism (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014). The Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). In this connection, the Court reiterates that human rights cases before it generally have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 XII).
8. In view of the above and having regard to the circumstances of the present case, the Court accepts that Mr K. Mishchenko has a legitimate interest in pursuing the application in the late applicant’s stead. For convenience, it will, however, continue to refer to Mr I. Mishchenko as the applicant in the present judgment.
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION9. The applicants complained principally that they were not afforded adequate medical treatment in detention. They 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.”
10. The Court notes that the applicants suffered from serious medical conditions, as indicated in the appended table, which affected their everyday functioning. Therefore, they could have experienced considerable anxiety as to whether the medical care provided to them was adequate.
11. 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).
12. Having examined all the material submitted to it, the Court has identified the shortcomings in the applicants’ 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 applicants did not receive comprehensive and adequate medical care whilst in detention.
13. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.
ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION14. The applicants also complained that no effective domestic remedies regarding the quality of the medical care in detention were available to them. Their 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 ...”
15. 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 in Russia (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 applicants with adequate and sufficient redress for their complaints under Article 3 of the Convention.
16. The Court sees no reason which would justify departure from its well‑established case-law on the issue. It finds that the applicants did not have at their disposal an effective domestic remedy for their complaints, in breach of Article 13 of the Convention.
OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW17. In applications nos. 2301/19 and 25916/20 the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Tomov and Others v. Russia, nos. 18255/10 and 5 others, §§ 92-156, 9 April 2019, as regards inadequate conditions of detention during transport and lack of effective remedies in this connection, and Dirdizov v. Russia, no. 41461/10, §§ 101- 11, 27 November 2012, as regards lengthy pre-trial detention.
REMAINING COMPLAINTS18. The applicant in application no. 2301/19 further complained about material conditions of his detention after conviction and lack of effective remedies to complain in that respect. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the applicant and that there is no need to examine these complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 156).
19. In applications nos. 17036/19 and 46132/19 the applicants also raised other complaints under various Articles of the Convention.
20. The Court has examined these applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION21. 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.”
22. Regard being had to the documents in its possession and to its case‑law (see, in particular, Kolesnikovich, cited above, §§ 82-92; Tselovalnik v. Russia, no. 28333/13, §§ 70-77, 8 October 2015; and Budanov v. Russia, no. 66583/11, §§ 77-83, 9 January 2014), as well as taking into account the previous awards made in earlier cases by the Court to some of the applicants in the present case, the Court considers it reasonable to award the sums indicated in the appended table.
23. 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,
Decides to join the applications;Holds that Mr Kirill Igorevich Mishchenko has standing to pursue the proceedings initiated by his late father, Mr I. Mishchenko (application no. 25916/20);Declares the complaints concerning the failure of the authorities to provide the applicants with adequate medical care in detention, the complaints concerning the lack of effective remedies in this regard and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible; decides that it is not necessary to examine separately further complaints in application no. 2301/19 about material conditions of detention after conviction and lack of effective remedies in this connection, and dismisses the remaining complaints in applications nos. 17036/19 and 46132/19 as inadmissible;Holds that there has been a violation of Article 3 of the Convention Article 3 of the Convention on account of the inadequate medical care in detention;Holds there has been a violation 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 that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);Holds(a) that the respondent State is to pay the applicants, within three months, the amounts 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Darian Pavli
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Articles 3 and 13 of the Convention
(inadequate medical treatment in detention and lack of any effective remedy in this regard)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Principal medical condition
Shortcomings in medical treatment
Dates
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
2301/19
14/12/2018
Aleksandr Valeryevich MELESHCHENKO
1983
inflammatory arthritis of the hip joint, limb length discrepancy
lack of/ delay in conducting a surgery, the applicant is not provided with crutches, therapy with improper painkillers
29/09/2017 – pending
More than 4 year(s) and 10 month(s) and 22 day(s)
Art. 13 - lack of any effective remedy in domestic law to complain about inadequate conditions of transport and inadequate medical treatment,
Art. 3 - inadequate conditions of detention during transport - transportation by van and train:
09/12/2018-10/12/2018, 19/12/2018, 15/04/2019-16/04/2019, 25/05/2019, 03/10/2019-04/10/2019, 13/10/2019;
insufficient number of sleeping places, passive smoking, no or restricted access to toilet, no or restricted access to potable water, bunk beds, lack of or inadequate hygienic facilities, 0.28-0.5 sq. m. of personal space
16,000
17036/19
25/03/2019
Igor Leonidovich KOSTROMIN
1969
Anastasiya Vladimirovna Kopteyeva
Chita
femoral head aseptic necrosis
lack of/delay in consultation by a specialist, lack of/delay in medical testing, lack of hip replacement therapy
26/09/2013 – pending
More than 8 year(s) and 10 month(s) and 25 day(s)
15,000
46132/19
29/07/2019
Aleksey Anatolyevich PANOV
1980
HIV/AIDS
lack of/delay in medical testing, lack of/delay in medical examination, lacking/delayed drug therapy, in February 2016 the applicant was diagnosed with HIV; since June 2017 he is serving sentence in IK-1 Komi Republic; according to an expert opinion issued with the tort proceedings initiated by the applicant in February 2019, the medical aid provided to him in the colony had serious defects. In particular, the applicant did not receive proper regular testing for viral load, CD-4 count, etc., he did not receive prophylactic treatment of contaminant illnesses; he was not examined by medical specialists, including generalist, neurologist, he also did not receive timely and adequate antiretroviral therapy, which according to the court, could have "prevented the development of the HIV virus, improve the immune system..."
17/06/2017 – pending
More than 5 year(s) and 2 month(s) and 1 day(s)
15,000
2506/20
19/02/2020
Sergey Ivanovich NOVIKOV
1972
gastroduodenitis
hepatitis C
hypertensive disease
lack of/delay in medical testing, lacking/delayed drug therapy, IK-1 Komi Republic
13/02/2014 – pending
More than 8 year(s) and 6 month(s) and 5 day(s)
lacking/delayed drug therapy, lack of/delay in medical testing, IK-1 Komi Republic
26/06/2018 – pending
More than 4 year(s) and 1 month(s) and 23 day(s)
lack of/delay in medical testing, IK-1 Komi Republic
05/03/2019 – pending
More than 3 year(s) and 5 month(s) and 13 day(s)
2,500
6368/20
23/12/2019
Pavel Timofeyevich BLOKHINOV
1967
absence of teeth; no possibility to eat solid food; pain in the gums; suffers from chronic stomach disease as a result
unavailability of the medical procedure (teeth prostheses)
13/06/1999 – pending
More than 23 year(s) and 2 month(s) and 5 day(s)
15,000
8655/20
17/01/2020
Murad Mukhtarovich ALIBEKOV
1979
Nadezhda Valeryevna Radnayeva
Balashikha
physical injury, malunion of the right arm, severe pain caused by a holding construction installed into the arm; signs of atrophy
lack of/delay in medical examination, delay of hospitalisation, absence of a surgical consultation for more than a year since 04/06/2019, absence of a consultation by a traumatologist although such a consultation was already recommended on 04/06/2018, detention in IK-12 Sverdlovsk Region in the absence of proper medical assistance
07/09/2014 – pending
More than 7 year(s)
15,000
11211/20
28/01/2020
Dmitriy Andreyevich KLIMOV
1987
Anastasiya Vladimirovna Kopteyeva
Chita
diabetes, arterial hypertension
lack of regular glucose and glycohemoglobin testing, lack of medical examination and treatment of arterial hypertension, at IK-8 Zabaykalskiy Region
25/12/2008 – pending
More than 13 year(s) and 7 month(s) and 24 day(s)
15,000
18216/20
30/03/2020
Viktor Mikhaylovich KUZMIN
1968
Yelena Leonidovna Kharionovskaya
Vologda
absence of teeth, inability to eat solid food, pain in the gums, severe ache
lack of/delay in consultation by a specialist, lack of treatment / dental prostheses
02/02/2016 – pending
More than 6 year(s) and 6 month(s) and 16 day(s)
15,000
25916/20
11/06/2020
Igor Vladimirovoch MISHCHENKO
Born in 1955
Died in 2020
Heir
Kirill Igorevich MISHCHENKO
1981
Geroyev Akhmed Daudovich
Moscow
the applicant suffered from a serious heart condition and was detained in SIZO-5 Moscow since 14/10/2019; as a result of contamination with COVID-19, at the time of lodging the application the first applicant was in coma in intensive care, hooked up to the lung ventilator; he was in a critical condition; the applicant died in August 2020
lacking/delayed drug therapy, lack of/delay in medical examination, lack of/delay in medical testing, in SIZO-5 Moscow, the applicant was transferred to Moscow town clinical hospital (resuscitation unit) on 28/05/2020
14/10/2019 to 19/08/2020
10 month(s) and 6 day(s)
Art. 5 (3) - excessive length of pre-trial detention - the first applicant was in pre-trial detention since 14/10/2019; his detention was regularly extended by the Basmannyy District Court of Moscow and the Moscow City Court on the ground of the gravity of offence and risk of absconding (given inability to find his travel passport and his having property outside Russia)
(10 months, 6 days); defects: use of stereotyped reasoning for the extension of detention; no proper consideration of alternative measures particularly so in view of the applicant’s health
19,500
[1] Plus any tax that may be chargeable to the applicants.