THIRD SECTION
CASE OF NUSALOVA AND LYAPIN v. RUSSIA
(Applications nos. 17492/16 and 35394/17)
JUDGMENT
STRASBOURG
9 June 2022
This judgment is final but it may be subject to editorial revision.
In the case of Nusalova and Lyapin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Andreas Zünd,
Mikhail Lobov, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 19 May 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. They 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 KONOPLEV AND MS LYAPINA6. Following the death of the applicant, Ms Nusalova (application no. 17492/16), her father, Mr Vladimir Anatolyevich Konoplev, expressed the wish to pursue the application. The Government did not comment.
7. Following the death of the applicant, Mr Lyapin (application no. 35394/17), his mother, Ms Yelena Nikolayevna Lyapina, expressed the wish to pursue the application. The Government objected noting that the rights claimed by Mr Lyapin under Articles 3 and 13 of the Convention belonged to the category of non-transferrable rights and that his mother could not claim to be the victim of a violation on behalf of the deceased.
8. 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).
9. In view of the above and having regard to the circumstances of the present case, the Court accepts that Mr Konoplev and Ms Lyapina have a legitimate interest in pursuing the applications in the late applicants’ stead. It will therefore continue dealing with the case at their request. For convenience, it will, however, continue to refer to Ms Nusalova and Mr Lyapin as the applicants in the present judgment.
ALLEGED VIOLATION OF ARTICLEs 3 and 13 OF THE CONVENTION10. The applicants complained that they had not been afforded adequate medical treatment in detention. They relied on Articles 3 and 13 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”
Alleged violation of Article 311. 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.
12. 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)
13. 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.
14. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.
Alleged violation of Article 1315. The applicants also complained that no effective domestic remedies regarding the quality of the medical care in detention had been available to them.
16. 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 applicants with adequate and sufficient redress for their complaints under Article 3 of the Convention.
17. 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.
REMAINING COMPLAINTS18. The applicants also raised other complaints under various Articles of the Convention.
19. The Court has examined the applications listed in the appended table 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 CONVENTION20. 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.”
21. 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), the Court considers it reasonable to award the sums indicated in the appended table.
22. 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;Declares that Mr Konoplev (application no. 17492/16) and Ms Lyapina (application no. 35394/17) have standing to pursue the applications in the late applicants’, Ms Nusalova’s and Mr Lyapin’s, respectively, stead;Declares the complaints concerning the failure of the authorities to provide the applicants with adequate medical care in detention and the complaints concerning the lack of effective remedies in this regard admissible, and the remainder of the applications inadmissible;Holds that these complaints disclose a breach of Article 3 of the Convention on account of the inadequate medical care in detention;Holds that these complaints disclose 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 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 9 June 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 domestic law)
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
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1]
17492/16
01/04/2016
Yekaterina Vladimirovna NUSALOVA
1979
Deceased on 16/07/2016
Application pursued by Vladimir Anatolyevich KONOPLEV
1951
Petryakov Sergey Ivanovich
Kazan
Cancer, hepatitis, HIV/AIDS
Lacking/delayed drug therapy / chemotherapy
Lack/delay of medication;
No special treatment, immunotherapy, chemotherapy or radiotherapy was provided to the applicant during the entire period of her detention
24/06/2015 to 22/05/2016
10 month(s) and 29 day(s)
20,000
35394/17
02/05/2017
Sergey Vladimirovich LYAPIN
1979
Deceased on 17/06/2018
Application pursued by Yelena Nikolayevna LYAPINA
1950
Vasin Vladimir Valeryevich
Krasnoyarsk
Esophagus cancer
Delay in carrying out an endoscopy examination
05/09/2016 to 30/09/2016
25 days
Belated in-depth examination in respect of cancer
11/10/2016 to 09/12/2016
1 month(s) and 29 day(s)
Lack of surgery
09/12/2016 to 14/04/2017
4 month(s) and 6 day(s)
Belated computed tomography
09/12/2016 to 15/02/2017
2 month(s) and 7 day(s)
Lack of gastrostomy
11/04/2017 to 16/05/2017
1 month(s) and 6 day(s)
No drug treatment, save for analgesics, after 14/03/2017 and until release on 16/05/2017 in view of a particularly poor state of health
15,000
[1] Plus any tax that may be chargeable to the applicants.