MELESHCHENKO A OSTATNÍ proti Rusku

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

1. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. 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.

3. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

9. 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.

4. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

14. 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.

5. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

17. 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.

6. REMAINING COMPLAINTS

18. 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.

7. APPLICATION OF ARTICLE 41 OF THE CONVENTION

21. 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,

1. Decides to join the applications;
2. Holds that Mr Kirill Igorevich Mishchenko has standing to pursue the proceedings initiated by his late father, Mr I. Mishchenko (application no. 25916/20);
3. 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;
4. 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;
5. 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;
6. 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);
7. 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)

[1] Plus any tax that may be chargeable to the applicants.