THIRD SECTION

CASE OF DMITRIYEV v. RUSSIA

(Application no. 66231/14)

JUDGMENT

STRASBOURG

6 December 2016

This judgment is final but it may be subject to editorial revision.

In the case of Dmitriyev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 15 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 66231/14) 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 a Russian national, Mr Aleksandr Anatolyevich Dmitriyev (“the applicant”), on 12 September 2014.
2.  The applicant, who had been granted legal aid, was represented by Ms A. Boychenyuk, a lawyer practising in Paris. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
3.  The applicant alleged that he did not receive proper dental treatment in detention and that there was no effective remedy in that regard.
4.  On 3 September 2015 the application was communicated to the Government.
5.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1974 and is detained in the Tomsk Region.
7.  On 2 December 2007 the applicant was arrested on suspicion of murder and two days later was placed in remand prison no. IZ-70/1 in Tomsk. On 13 November 2008 he was found guilty and sentenced to eleven years’ imprisonment. The conviction was upheld on appeal. Since 18 February 2009, save for short periods of detention in the remand prison, the applicant has been held in correctional colonies nos. 2 and 4 in the Tomsk Region.
8.  The applicant submitted that during his pre-trial detention he had not been examined by a dentist and had not received any dental treatment because, as he had been informed, the remand prison neither possessed any dental equipment nor employed a dentist. The only alternative to treatment had been tooth extraction by a doctor who visited the facility once or twice a month. While in the correctional colony, the applicant had been unable to obtain any dental treatment for extended periods of time because the dental drill and X‑ray scanner were broken. Moreover, the colony’s dentist was habitually either on holiday or away attending training courses. The applicant produced statements written by five inmates with whom he had been detained in the same penal institutions from 2007-2014. The statements corroborated his account of the lack of effective dental treatment.
9.  The applicant also submitted that he had received dental treatment for the first time on 8 June 2011 in the correctional colony. Since that time, he had undergone scaling and cleaning procedures, and extraction of teeth, but had not been prescribed any painkillers for the toothache he was suffering. Although the applicant was diagnosed with periodontitis on 19 February 2009, it was not until 20 November 2013 that treatment of the disease had been prescribed.
10.  During his detention the applicant lost nine teeth in total. He was unable to obtain orthodontic treatment even at his own expense. He had therefore asked a fellow inmate to make him temporary metal dental prostheses to replace several teeth, but they did not fit well. On 23 December 2014 the applicant had been examined by a visiting dentist from another correctional colony who recommended examination by a specialist dentist once released.
11.  The applicant also submitted several photos of his oral cavity dated 2 February and 28 April 2014, which showed that he had lost at least two front teeth within the given timespan. A medical certificate issued by the applicant’s dentist on 27 June 2014 confirmed the presence of dental prostheses for eight teeth and the absence of another ten. Another dentist’s certificate of 24 March 2016 showed that there were thirteen teeth missing in total.
12.  The applicant brought the issue of inadequate medical treatment to the attention of various domestic authorities, including the head of the remand prison, the Tomsk regional prosecutor’s office, and the Federal Service of Execution of Sentences (“the FSIN”), but all to no avail.
13.  The Government submitted that the applicant had undergone medical examinations in each penal facility and had been provided with the requisite medical treatment. They relied, in particular, upon certificates issued by the director of prison hospital no. 70 of Tomsk and the director of correctional colony no. 2, extracts from the applicant’s medical file, lists of medicines and medical appliances available at the respective penal institutions, staff lists, and the penal institutions’ medical licences.
14.  The applicant’s medical file contained the following entries. On 19 February 2009 the applicant was examined by a dentist for the first time after his placement in detention on 4 December 2007, and he was diagnosed with periodontitis. On 30 December 2010 the dentist concluded that “the oral cavity required sanitisation”. On 3 February 2011 the applicant raised his dental problems during a visit to the head of the medical unit but there was no entry in the medical file indicating that the applicant’s complaint had been investigated. On 2 March 2011 the dentist recommended extraction and further treatment of teeth to the applicant. Four days later an exacerbation of his chronic periodontitis was diagnosed and one tooth was extracted. Eleven days later the applicant was informed that he could have dental prostheses fitted at his own expense. Between 3 June and 20 July 2011 he visited the dentist on seven occasions, during which he was diagnosed with gingivitis of the front teeth and dental caries, three permanent dental fillings were put in, the gingivitis was treated and the tartar build-up was removed. On 1 and 8 December 2011 the dentist diagnosed the applicant as having chronic periodontitis and found that the oral cavity required sanitisation. The cleaning procedure was performed eight months later. On 20 November 2013 the applicant was diagnosed with inflammatory degenerative periodontitis and received treatment for it. Between 20 March and 5 May 2014 the dentist again confirmed the diagnosis, prescribed treatment and extracted three teeth.
15.  Between 10 July and 7 August 2014 the applicant visited the medical unit three times and asked for dental prostheses. It was explained that such treatment could be provided at the applicant’s own expense. Meanwhile the dentist confirmed the diagnosis of inflammatory degenerative periodontitis, prescribed treatment, extracted another tooth, removed a dental bridge and cleaned the tartar build-up.
16.  On 23 December 2014 the applicant was examined by two dentists, who confirmed the partial absence of teeth in both jaws, with some of them being replaced by metal prostheses. They did not diagnose periodontitis and concluded that the applicant did not require orthodontic treatment. A dentist who carried out a checkup on 22 October 2015 arrived at the same conclusions, but noted some teeth missing on the upper jaw only. The applicant was found to be “apparently healthy”.
17.  The Government did not contest the veracity of the statements made by the applicant’s former cellmates.
Article II.	II.  RELEVANT DOMESTIC LAW
Section 2.01	A.  Medical care afforded to detainees
18.  For the relevant provisions of domestic law, including joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice on the Organisation of Medical Assistance to Individuals Serving Sentences or Remanded in Custody (“the Regulation”), enacted on 17 October 2005, and international reports and documents see Patranin v. Russia (no. 12983/14, §§ 33-40, 23 July 2015).
Section 2.02	B.  Legal avenues for complaints about the quality of medical treatment
19.  For relevant provisions of domestic law see Koryak v. Russia (no. 24677/10, §§ 46-57, 13 November 2012); Dirdizov v. Russia (no. 41461/10, §§ 47-61, 27 November 2012); and Reshetnyak v. Russia (no. 56027/10, §§ 35-46, 8 January 2013).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF MEDICAL TREATMENT PROVIDED TO THE APPLICANT DURING HIS DETENTION
20.  The applicant complained that he had not been provided with adequate medical treatment in detention, in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
21.  He also claimed that he had had no effective domestic remedy in that respect, as required by Article 13 of the Convention:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Section 3.01	A.  Submissions by the parties
22.  The Government submitted that the applicant had been provided with proper medical treatment. They also argued that a number of effective remedies had been open to the applicant whereby he could have complained about the lack of adequate medical care in detention, in compliance with Article 13 of the Convention. In particular, they cited the possibility of lodging complaints with the administration of the penal institutions, the regional branch of the FSIN, the regional prosecutor’s office, or the domestic courts. However, the applicant had failed to use these remedies.
23.  The applicant argued that, for various reasons, he had been denied dental treatment for long periods of time, in breach of the national penal regulations. As a result, the periodontitis had developed into chronic and inflammatory degenerative forms, which caused him nagging ache and entailed the loss of nine teeth. Moreover, the applicant continued to suffer from a lack of teeth and still needed to use the makeshift metal prostheses since he had not been granted permission to visit a civilian dental centre in order to have proper ones fitted at his own expense.
24.  The applicant also drew the Court’s attention to the fact that he had contacted the domestic authorities on many occasions (see paragraph 12 above), however, his complaints had proved to be ineffective.
Section 3.02	B.  The Court’s assessment
(a)	1.  Admissibility
25.  The Court notes that the Government’s objection concerning the non‑exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint concerning the absence of effective remedies in respect of the quality of his medical care whilst in detention. It is therefore necessary to join the objection to the merits of the applicant’s complaint under Article 13 of the Convention.
26.  The Court further notes that the applicant’s complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.
(b)	2.  Merits
(i)	(a)  Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention
27.  For a summary of the relevant general principles see Reshetnyak (cited above, §§ 56-60).
28.  The Court notes the Government’s argument that by failing to raise his complaint before the State authorities and courts the applicant had not exhausted the domestic remedies.
29.  The Court reiterates that it has on many occasions examined the effectiveness of the domestic remedies suggested by the Government in cases where applicants had complained of ongoing inadequate medical treatment, such as in the present case. It has found, in particular, that the prison authorities would not have a sufficiently independent standpoint ‒ as required by Article 35 of the Convention ‒ when deciding on a complaint concerning breaches of domestic regulations governing the provision of medical care to detainees (see Koryak, cited above, § 79, and Dirdizov, cited above, § 75). The Court has also pointed out that a complaint to the supervising prosecutor falls short of the requirements of an effective remedy because of the procedural shortcomings that have been previously identified in the Court’s case-law (see Koryak, cited above, §§ 80-81). As to a civil claim for compensation, the Court has held that such a claim could offer an applicant no redress greater than a purely compensatory award and could not put an end to a situation where there is an ongoing violation, such as inadequate medical care (see Reshetnyak, cited above, §§ 65-73). Lastly, the Court has found that such a remedy did not offer reasonable prospects of success, in particular because the award was conditional on the establishment of fault on the part of the authorities, which was extremely improbable in a situation where domestic legal norms prescribed the application of a certain measure, for instance certain conditions of detention or a certain level of medical treatment (see A.B. v. Russia, no. 1439/06, § 96, 14 October 2010).
30.  Since the applicant’s claim of inadequate medical care whilst in detention is admissible (see paragraph 26 above), and given the applicant’s health problems and the seriousness of his allegations, the Court finds the claim to be arguable. Accordingly, the respondent State had an obligation to ensure the availability of an effective remedy to deal with the substance of his complaint. Taking into account the circumstances of the present case and the aforementioned case-law, the Court sees no reason to depart from its previous findings on the issue. It concludes that the legal avenues put forward by the Government did not constitute an effective remedy capable of preventing the alleged violations or their continuation and providing the applicant with adequate and sufficient redress for his complaint under Article 3 of the Convention.
31.  Accordingly, the Court rejects the Government’s objection alleging non-exhaustion of domestic remedies and finds that the applicant did not have an effective domestic remedy for his complaint, in breach of Article 13 of the Convention.
(ii)	(b)  Alleged violation of Article 3 of the Convention
32.  For a summary of the relevant general principles see Reshetnyak, cited above, §§ 81-85.
33.  The Court notes that in the present case the parties have disagreed as to the adequacy of the medical treatment in detention. However, in the present case the Court does not consider it necessary to establish the truthfulness of each and every allegation made by the parties, because it may arrive at a conclusion about a violation of Article 3 of the Convention on the basis of the facts that have been presented or are undisputed by the respondent Government, for the following reasons.
34.  The applicant has made a convincing case of lack of adequate dental care in detention, providing detailed description of the periods and nature of treatment, submitting photographs of the oral cavity, the written testimony of five fellow inmates and dentists’ certificates. The Government, in their defence, submitted a number of documents, including extracts from the applicant’s medical file, lists of medicines and medical appliances available at the penal institutions, staff lists, and the medical licences of those institutions.
35.  Taking into account the documents submitted by the parties, the Court finds it established that the applicant was not provided with dental care for a period of more than fourteen months during his detention on remand (see paragraphs above). That finding is also supported by the fact that the Government did not provide any comment with regards to the written statements of the applicant’s former cellmates. Neither the extracts from the applicant’s medical file nor the lists of medicines showed that the applicant was given painkillers, which were obviously needed as he had complained of toothache.
36.  The Court is mindful of the fact that the applicant was diagnosed with the periodontitis on 19 February 2009. In two years the disease became chronic and inflammatory degenerative, but the medical staff merely continued extracting the applicant’s teeth without providing any preventive or conservation treatment. It was not until four years and nine months after its diagnosis that he was treated for the periodontitis for the first time. The Government did not provide any explanation for such a substantial lapse of time.
37.  Lastly, the documents and photographs submitted by the parties show that by 27 June 2014 the applicant was missing eighteen teeth with five of them having been extracted during the detention period. Eight of the missing teeth were replaced by “metal prostheses”, which, according to the applicant, were made and fitted by his fellow inmate, and were a source of constant pain for him. Furthermore, by 24 March 2016 he had thirteen teeth missing. The Court notes that the applicant asked the penal institution’s administration for proper dental prostheses on 17 March 2011, 10 July and 7 August 2014. However, he was merely informed that prostheses could be fitted at his own expense, but no further action was taken, regardless of the applicant’s willingness to cover the cost and proceed with this medical procedure. The Government did not provide any explanation in that respect (see, mutatis mutandis, V.D. v. Romania, no. 7078/02, §§ 94-99, 16 February 2010).
38.  Taking all the above into consideration, the Court cannot but conclude that, during his detention, the applicant was left for lengthy periods without proper dental care which caused him pain and suffering and led to the development of more serious dental conditions. There has accordingly been a violation of Article 3 of the Convention.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
39.  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.”
Section 4.01	A.  Damage
40.  The applicant claimed 6,020 euros (EUR) in respect of pecuniary damage since this is the amount he would need to pay in future for proper dental prostheses. The applicant also claimed EUR 20,000 in respect of non‑pecuniary damage.
41.  The Government left the issue to the discretion of the Court.
42.  The applicant did not adduce evidence to support the amount; the Court therefore rejects this claim. As to the amount claimed in respect of non-pecuniary damage, it appears to be excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
Section 4.02	B.  Costs and expenses
43.  The applicant also claimed EUR 2,500 for the costs and expenses incurred before the Court.
44.  The Government left the issue to the discretion of the Court.
45.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking into account the documents in its possession, the above criteria and the fact that the applicant was granted legal aid in the amount of EUR 850 from the Court, it awards the applicant EUR 1,000 under this head, plus any tax that may be chargeable to him on that amount.
Section 4.03	C.  Default interest
46.  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.  Joins the Government’s objection as to the alleged non-exhaustion of domestic remedies in respect of the applicant’s complaints under Article 3 of the Convention to the merits of his complaint under Article 13 of the Convention and rejects it;

2.  Declares the application admissible;

3.  Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy whereby to complain of inadequate medical treatment whilst in detention;

4.  Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical treatment in detention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President