Постановление Европейского суда по правам человека от 01.04.2010 «Дело Ахметов (Akhmetov) против России» [англ.]

2. The Court considers it appropriate that the default interest 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

1. Declares the application admissible unanimously;
2. Holds by five votes to two that there has been a violation of Article 3 of the Convention;
3. Holds by five votes to two
(a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 18,000 (eighteen thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage;
(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 unanimously the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 1 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Andre} WAMPACH
Deputy Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, a dissenting opinion of Judge Jebens, joined by judge Kovler, is annexed to this judgment.

C.L.R.

A.M.W.

DISSENTING OPINION OF JUDGE JEBENS, JOINED BY JUDGE KOVLER

I respectfully disagree with the majority that there has been a violation of Article 3 in this case, due to lack of adequate medical assistance to the applicant. In my view, the authorities took all steps that can be reasonably expected by them, in order to provide the applicant with medical treatment.
1. The applicant alleges that radical treatment of his tumour became impossible due to the authorities' failure to conduct such treatment in good time. This is, in my opinion not supported by the facts of the case. Though radical treatment was recommended in 2001 and 2002, but was ruled out by the doctors in 2003 and 2004, it appears that the different answers to this complex question were caused by conflicting opinions by the doctors, not by the fact that too much time had passed. I would like to note in this respect, firstly, that a relatively short period of time elapsed between the last report recommending surgery, issued in May 2002, and the first report not recommending it, issued in February 2003. Though it is not inconceivable that this period could have been critical for the development of the applicant's condition, there are no medical reports to support that argument. Secondly, the first report of 2001 only recommended radical treatment subject to the tomography and angiography reports. The opinion of 27 March 2004 also stated that a decision on the possibility of surgical treatment of the tumour could only be made after angiography had been performed. The reports of August and November 2004, which ruled out radical treatment, were therefore based on more complete and accurate information concerning the applicant's condition.
2. Given the complex and rare nature of the applicant's condition, it is understandable that the methods for its treatment could be subject to different medical opinions, especially in view of the results of medical tests which were not available to the doctors who had recommended radical treatment. Thus, the domestic authorities were confronted with conflicting medical opinions as to the applicant's treatment,

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