British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
LOGVINENKO v. UKRAINE - 13448/07 [2010] ECHR 1509 (14 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1509.html
Cite as:
[2010] ECHR 1509,
(2013) 57 EHRR 24,
57 EHRR 24
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF LOGVINENKO v. UKRAINE
(Application
no. 13448/07)
JUDGMENT
STRASBOURG
14 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Logvinenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 21 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 13448/07) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Aleksandr
Vladimirovich Logvinenko (“the applicant”), on 25 January
2007.
The
applicant, who had been granted legal aid, was represented by
Mr A. A. Kristenko, a lawyer practising in Kharkiv.
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
The
applicant alleged, in particular, that the conditions of his
detention, including medical assistance and the physical arrangements
for his health needs, and the manner in which he was treated by the
officers of Penitentiary no. 47 had been inhuman and degrading.
On
12 January 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
The
applicant was born in 1976 and is currently serving a life sentence
in Kherson.
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant and his
detention record
On
2 March 2001 the applicant was arrested and placed in the Kyivskyy
District police station of Simferopil on suspicion of murder.
On
7 March 2001 the applicant was transferred to the Simferopil police
temporary detention centre (the “ITT”).
On
27 April 2001 the applicant was transferred to the Simferopil no. 15
pre-trial detention centre (“the SIZO”) and on the same
date placed in the Crimean Psychiatric Hospital for in-patient
psychiatric assessment.
On
24 May 2001 the applicant was transferred back to the SIZO.
On
26 October 2001 the Court of Appeal of the Autonomous Republic of
Crimea convicted the applicant of murder and sentenced him to life
imprisonment.
On
28 February 2002 the Supreme Court of Ukraine upheld this judgment
and it became final.
In
October 2004 the applicant was transferred to Sokalska no. 47
Penitentiary, Lviv Region (“Penitentiary no. 47”).
In
November 2006 the applicant was transferred to Kherson no. 61
Penitentiary (“Penitentiary no. 61) and placed in the
prison hospital.
B. Treatment for HIV and tuberculosis, and the physical
conditions of the applicant’s detention
In
spring 1997 (prior to his detention) the applicant was diagnosed with
infiltrated tuberculosis of the lung. In February 2000 he was also
diagnosed with late stage of HIV (Aids).
1. The applicant’s account of events
According
to the applicant, throughout the period of 2001-2008 the medical
assistance afforded to him on account of his HIV and tuberculosis was
grossly inadequate, while the physical arrangements of his detention
were incompatible with his state of health.
In
particular, as regards HIV, no treatment was offered whatsoever.
Furthermore, in spite of the doctors’ recommendations and the
applicant’s numerous requests, throughout the period of his
detention he was denied blood tests to establish his count of CD-4
immunity cells, which are instrumental in combating tuberculosis and
possibly inhibited as a result of HIV. On several occasions the
applicant was informed that antiretroviral therapy would become
available to him after the successful treatment of his tuberculosis.
As
regards the treatment for tuberculosis, it was irregular and
insufficient. In particular, in spite of the applicant’s
numerous complaints about his state of health (namely, shortness of
breath, fever, chest pain, and so on), no medical assistance
whatsoever was provided to him between March and May 2001.
On
28 May 2001 the applicant was examined by a panel of the SIZO medical
officers, who found that he was at risk of death if his state of
health was not promptly addressed and recommended his release in view
of the fact that the SIZO lacked the necessary facilities for his
treatment. The applicant submitted a copy of the letter from the
medical panel addressed to the SIZO governor and a letter from the
governor to the district court dated 16 July 2001 requesting his
release on humanitarian grounds. It is not clear whether these
letters generated any reaction from the court. The applicant,
however, remained in detention.
Since
June 2001 the applicant has been receiving treatment for
tuberculosis, but it has not been effective. On many occasions he was
denied routine consultations in spite of his demands. However, even
when he was able to obtain consultations, the recommendations of the
doctors were not followed through effectively. For example, on 13
July 2006 the applicant consulted a panel of medical specialists and
was advised to undergo a number of tests. However, these tests were
not carried out because the necessary facilities were unavailable,
with the exception of two blood tests (biochemical and general)
carried out in August 2006. The applicant was likewise unable to
obtain timely tests on a number of other (unspecified) occasions in
spite of his demands.
The
applicant’s recovery from tuberculosis was further impeded by
the physical conditions of his detention. In all of the facilities in
which he was detained, the applicant was largely confined to his
cell. In the ITT he had to sleep on a bare mattress, as no linen was
provided. Furthermore, he had no opportunity to wash, shave or take
outdoor exercise. In Penitentiary no. 47 the cells had no
mirrors or drawers and were poorly heated. The air was so damp that
the walls and ceilings were covered with fungi and mould, as well as
frost during the winter months. The drinking water was rusty and hot
water for washing was not available more than once every two to three
weeks. Despite suffering from active tuberculosis, on some occasions
the applicant had to share a cell with other prisoners, including
those who were healthy, which provoked conflicts. As a result of the
lack of treatment and the inadequate conditions of his detention, the
applicant caught bronchitis and pneumonia on various occasions, while
his tuberculosis spread further and became chronic.
By
way of evidence, the applicant presented a statement by his cellmate,
Mr G. According to him, he shared the applicant’s cell on
various occasions for periods lasting from several days to several
weeks. Their cell was very cold and no adequate clothing was
provided. On numerous occasions the applicant’s requests for
medical assistance were ignored and the actual administration of
anti-tuberculosis drugs was irregular, provoking the aggravation of
his condition and resistance of the bacteria to treatment.
On
numerous occasions the applicant complained to various authorities,
including the ombudsman, the Prosecutor’s Office and the local
Department for the Enforcement of Sentences, of the inadequacy of his
medical assistance and the incompatibility of the conditions of his
detention with his state of health. His complaints, however, were to
no avail.
On
two occasions the applicant attempted to lodge complaints about the
conditions of his detention with two different courts; however, his
submissions were rejected with reference to a lack of territorial
jurisdiction. At one time the applicant demanded that a court clerk
be commissioned to assist him in drafting his submissions, but this
request was refused as not based on law. The applicant never appealed
against the court decisions not to examine his claims.
In
September 2006, following the applicant’s numerous complaints
to the prosecutor’s office, the Lviv Prosecutor’s Office
contacted the Chief of the Regional Department for the Enforcement of
Sentences and the governor of Penitentiary no. 47, urging them to
take urgent measures to ensure that the applicant receive a
comprehensive medical examination. Following this intervention, in
November 2006 the applicant was transferred to Kherson no. 61
Penitentiary Hospital. However, following the applicant’s
transfer, healthcare arrangements did not improve significantly. In
particular, no HIV therapy was made available to him.
2. The Government’s account of events
The
Government presented extensive handwritten medical notes, which are
hardly legible, and a typed synopsis of the applicant’s
treatment history, on the basis of which they alleged that the
applicant was regularly and consistently supervised and received
treatment in compliance with the applicable Ministry of Health
guidelines.
According
to the synopsis, on 27 April 2001 the applicant was examined by a
tuberculosis specialist and diagnosed as suffering from focal
tuberculosis of the upper part of the right lung in the consolidation
stage.
On
28 May 2001 the applicant was x-rayed. His x-ray indicated small
low-intensity foci of the tuberculosis infection in the upper part of
the right lung. Following this test, the applicant was prescribed
standard treatment of a combination of “first-line”
anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin,
ethambutol and pyrazinamide) and vitamins.
The
applicant was further examined by a tuberculosis specialist and (or)
x-rayed in September 2001 (infiltrating tuberculosis; same treatment
continued); March 2002 (diffusion and consolidation of the infection
– positive dynamics); September and November 2004 (disseminated
tuberculosis of the upper parts of both lungs, diffusion and
consolidation stage); February 2005 (positive dynamics: namely, large
remaining modifications after the tuberculosis infection –
anti-recurrence treatment with “first-line” antibiotics
and diet prescribed); May 2005 (same as before); June and November
2005 (recurrence of the tuberculosis infection in both lungs,
including tissue destruction); January and February 2006 (recurrent
tuberculosis, consolidation stage (positive dynamics), same
treatment); June and July 2006 (same diagnosis including tissue
destruction; same treatment); October 2006 (chronic tuberculosis
including pulmonary fibrosis, numerous polymorphous foci of various
sizes and numerous tuberculomas); October 2007 (results unspecified);
August 2008 (the number of foci increased in both lungs); February
2009 (slight diffusion and consolidation of the infection foci
(positive dynamics)).
The
synopsis further gives a detailed account of the numerous tests
carried out of the applicant’s blood, urine and sputum between
November 2006 and December 2007 and a record of a drug-resistance
test taken in February 2007. Following the test for drug resistance,
it was established that the applicant was resistant to some of the
“first-line” anti-tuberculosis medication and his
treatment regime was supplemented with some “second-line”
drugs.
In
addition, in May and June 2005 the applicant received
anti-inflammatory treatment on account of pneumonia in May 2005 and
was treated for bronchitis in August 2005. In August 2008 the
applicant was diagnosed with chronic bronchitis and hepatitis.
In
the light of the positive tuberculosis dynamics, the applicant began
preparing for HIV therapy at the beginning of 2009.
C. Ill-treatment by the officers of Penitentiary no. 47
According
to the applicant, immediately upon his and two other convicts’
arrival at Penitentiary no. 47 in October 2004, they had their heads
covered with sacks, were forced onto their knees, handcuffed and
beaten by unnamed junior officers for no reason. Furthermore, they
were threatened with a dog, strip searched, and then forced to do
sit-ups which were counted. Subsequently, on numerous occasions the
officers continued to humiliate the applicant and create a stressful
atmosphere. In particular, on numerous occasions they beat him,
threatened him with a dog, knocked on the door with a stick for no
reason, interrupted his sleep, opened the door to the cell suddenly
for various checks, and verbally insulted him. During the daytime the
applicant was forbidden to lie on the bed. Furthermore, when the
applicant needed to leave the building, for instance for
fluorography, his head was covered with a sack and he was made to
walk in an unnatural position (“a duck”- legs bent with
hands behind the head). On 6 April 2005 the applicant was beaten for
lying on his bed during the daytime when ill and on 29 June 2005 for
refusing to assume the “duck” walking position. Each day
the applicant was handcuffed and body-searched, being forced to stand
barefoot on the concrete floor while the officers searched his shoes.
The
applicant presented a handwritten statement of claim dated 14 June
2006 referring to the above conduct of the prison officers and
addressed to the Shevchenkivskyy District Court of Kyiv. However, he
did not provide any evidence that this statement was received by the
court or even despatched from the penitentiary.
According
to the Government, none of the incidents mentioned above concerning
the applicant’s ill-treatment at the hands of the penitentiary
officers ever took place.
II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIALS
A. Constitution of Ukraine, 1996
Article 55 of the Constitution of Ukraine, insofar as
relevant, reads as follows:
“Human and citizens’ rights and freedoms are
protected by the courts.
Everyone is guaranteed the right to challenge in court
the decisions, actions or omissions of bodies of State power, bodies
of local self-government, officials and officers. ...
Everyone has the right to protect his or her rights and
freedoms from violations and illegal encroachments by any means not
prohibited by law.”
B. Code of Civil Procedure of 1963 (repealed with
effect of 1 September 2005)
Article 248-1 of the Code (Chapter 31-A) provided in
so far as relevant:
“Every citizen has the right to apply to court ...
with an application, should he consider that a decision, action or
inactivity of a public authority, legal person or official during the
exercise of their administrative functions has violated his rights or
freedoms ...”
C. The Code of Administrative Justice (in force since 1
September 2005)
Article
2 of the Code, insofar as relevant, reads as follows:
“1. The task of the administrative
justice system is the protection of the rights, freedoms and
interests of physical persons, and the rights and interests of legal
entities in the field of public law relations from violations by
public authorities ...
2. Any decisions, actions or inactivity of
public authorities can be appealed against in administrative courts,
except for cases in which the Constitution and laws of Ukraine
foresee a different procedure of judicial appeal against such
decisions, actions or inactivity ...”
D. Combating Tuberculosis Act of Ukraine of 5 July 2001
Section 17 of the Act provides that persons suffering
from tuberculosis detained in pre-trial detention centres (SIZOs)
must receive appropriate treatment in the medical units of these
detention centres. Persons detained in penitentiary establishments
should be treated in specialised prison hospitals.
E. Order of the Ministry of Health
of Ukraine no. 120 of 25 May 2000 “On Improving the
Organisation of Medical Assistance for HIV
Sufferers”
According
to paragraph 14 of the Order, depending on the stage of the
disease, HIV sufferers should have their count of CD-4 cells tested
every one to six months.
F. Order
of the State Department for the Enforcement of Sentences of Ukraine
and the Ministry of Health of Ukraine no. 186/607 of 15 November 2005
“On the Organisation of Antiretroviral Therapy for HIV
Sufferers Held in Penitentiary Institutions and Remand Centres”
40. According
to paragraphs 2.1 and 2.3 of the Instruction, approved by the
Order, medical assistance for HIV sufferers is viewed as comprising
compulsory dispensary supervision, treatment of opportunistic
diseases and access to antiretroviral therapy. In-patient treatment
of patients with stage III-IV HIV suffering from active tuberculosis
infections should be administered in prison hospitals specialising in
the treatment of tuberculosis.
G. Order
of the Ministry of Health of Ukraine no. 45 of 28 January 2005 “On
Approval of the Protocol of Medical Assistance for Tuberculosis
Sufferers” (repealed on 9 June 2006 by Order no. 384
approving the updated Protocol).
According
to paragraph 6.1 of the Protocol,
tuberculosis treatment was to be administered in specialised
anti-tuberculosis institutions and to consist of two phases: basic
chemotherapy and rehabilitation. The basic chemotherapy course
consisted of intensive and supportive treatment stages with
“first-line” anti-tuberculosis antibiotics (streptomycin,
isoniazid, rifampicin, ethambutol and pyrazinamide), or, in the event
of resistance of the infection to the above drugs, with “second-line”
or “reserve” antibiotics.
According
to paragraph 6.6.1, to obtain maximal results, medical or surgical
treatment was to be implemented in conjunction with a particular
hygiene and exercise regime (complete bed rest, part-time bed rest or
training regime) prescribed to an individual patient based on an
assessment of his condition.
Treatment
was to be followed by rehabilitation, including curative exercise,
massage and physiotherapy, which was recommended to be started within
two to two and a half months after the antibiotic treatment.
According
to paragraph 6.6.4, within several months of starting treatment, a
medical commission was to examine whether the intensive treatment
stage could be substituted by the supportive stage based on x-ray and
microbiological tests. If treatment appeared ineffective at this
stage the patient was to be tested for drug resistance, and, if
necessary, his case referred to a more qualified institution. In the
event that chemical treatment remained ineffective, surgical
intervention was to be explored as a possible alternative.
According
to paragraph 6.6.4.3, it was recommended that antibiotic treatment be
supplemented with anti-pathogenic medicines.
According
to paragraph 6.7, tuberculosis patients were to be continuously
monitored, which included x-rays every two months; blood (general and
biochemical) and urine tests every month during the intensive therapy
stage and once every two months during the supportive stage.
On
9 June 2006 Order no.45 was replaced with the Order no. 384 approving
an updated Protocol; however, the major approaches remained the same.
H. Order of the Ministry of Health no. 276 of 28 May
2008 “On Approval of the Clinical Protocol of Medical
Assistance to HIV tuberculosis Co-infection Sufferers”
According
to the Protocol, patients co-infected with HIV and tuberculosis
should predominantly be administered anti-tuberculosis therapy first,
based on the same principles as for patients suffering from
tuberculosis only. Under the general rule, antiretroviral therapy
should be administered after the completion of the intensive
anti-tuberculosis therapy stage, unless the level of CD-4 immunity
cells is lower than a certain threshold, in which case antiretroviral
therapy is administered immediately. On average, the level of CD-4
cells is expected to be tested once every three months.
I. Report to the Ukrainian Government on the visit to
Ukraine carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9
to 21 October 2005 (CPT/Inf (2007) 22)
Relevant
parts of the Committee for the Prevention of Torture’s report
on its visit to Ukraine in 2005 read as follows:
3. Prisoners sentenced to life
imprisonment
“ ...
115. Access to medical care in specialised facilities
remains problematic for this category of prisoner, both male and
female...
Further, the transfer of life-sentenced prisoners
suffering from tuberculosis to specialised medical penitentiary
facilities was still not possible. Such persons were kept in their
detention units, isolated in their cells, sometimes for many months.
The CPT recalls that obliging prisoners to stay in an
establishment where they cannot receive appropriate treatment due to
a lack of suitable facilities or because such facilities refuse to
admit them, is an unacceptable state of affairs which could amount to
inhuman and degrading treatment.
The
CPT recommends that the Ukrainian authorities ensure that life
sentenced prisoners – men and women – who require
treatment in a specialised hospital facility can be transferred to
such a facility without undue delay.”
J. Other relevant materials
Other relevant domestic and international materials
can be found in the judgments in the cases of Melnik v. Ukraine
(no. 72286/01, §§ 47-53, 28 March 2006), Yakovenko
v. Ukraine (no. 15825/06, §§ 49-55, 25 October
2007) and Kats and Others v. Ukraine (no.
29971/04, §§ 85-86, 18 December 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the conditions of his detention between
2001 and 2008 had been incompatible with the guarantees of Article 3
of the Convention on account of inadequate medical assistance and
incompatibility of the physical arrangements of his detention with
his state of health. He further complained under the same provision
of the misconduct of the officers of Penitentiary no. 47. The
relevant provision of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Submissions of the parties
The
Government submitted that in so far as the applicant referred to
wilful ill-treatment by the officers of Penitentiary no. 47, as well
as the healthcare and detention conditions, except for those in
Penitentiary no. 47, he had not exhausted relevant domestic remedies.
In particular, he could have brought these complaints at three levels
of domestic jurisdiction (in this respect they referred to Article 55
of the Constitution, Article 248-1 of the Code of Civil Procedure and
Article 2 of the Code of Administrative Justice) or addressed them to
the Prosecutor’s Office. They noted, in particular, that in so
far as the applicant had complained to the Prosecutor’s Office
of the inadequacy of medical assistance available to him in
Penitentiary no. 47, it was the Prosecutor’s Office that had
facilitated his medical assessment and eventual transfer to
Penitentiary no. 61.
The
Government further submitted that the applicant’s complaints
concerning the physical conditions of detention and medical
assistance in the Kyivskyy District police station and the ITT were
vague, unsubstantiated, and could not be the basis for an arguable
claim.
The
applicant disagreed. He submitted that the remedies referred to by
the Government were ineffective. In any event, he had raised all of
his complaints before the Prosecutor’s Office on a number of
occasions, but had not obtained sufficient redress. Although he was
eventually transferred to Penitentiary no. 61 after his numerous
complaints that the conditions of his detention and the physical
arrangements in Penitentiary no. 47 had been incompatible with his
state of health, his situation had not significantly improved. In
particular, he had still been denied access to antiretroviral
therapy.
In
so far as the applicant raised his complaints before the judicial
authorities, in view of the unclear rules of procedure and the
absence of any law entitling him to participate in the hearings in
person, this remedy could hardly have provided him with any prospect
of success.
In
any event, the problems he complained about were of a structural
nature. He was therefore unlikely to obtain their resolution by
applying to any additional authority.
2. The Court’s assessment
(a) Healthcare and physical conditions of
detention
In so far as the Government relied on the
non-exhaustion argument with respect to the applicant’s
complaints about healthcare and the physical conditions of his
detention, the Court notes that it has rejected similar objections in
a number of other cases, where the complaints concerned problems of a
structural nature in the domestic penitentiary system in question
(see, for example, Kalashnikov v. Russia (dec.), no. 47095/99,
18 September 2001; Melnik, cited above, §§ 69-71;
and Koktysh v. Ukraine, no. 43707/07, § 86, 10
December 2009).
The
Court finds that the same reasoning is pertinent in the present case.
In this regard the Court notes, in particular, that the applicant has
presented copies of his abundant correspondence with various
authorities on the matters at issue, which, however, did not seem to
have brought about adequate resolution to his grievances. The Court
finds that the competent authorities were well aware of the
applicant’s situation and his dissatisfaction with it and yet
they did not redress it. In the light of the above, it dismisses the
Government’s objection as to non-exhaustion of available
remedies in this respect.
As
regards other reasons for inadmissibility of this part of the
application, the Court notes that the applicant’s complaints
about the physical conditions of his detention in pre-trial detention
facilities (the Kyivskyy District police station, the ITT and the
SIZO), relate to the period ending in October 2004, when he was
transferred to Penitentiary no. 47 to serve his sentence. In the
meantime, the present application was lodged only on 25 January 2007
(i.e. outside the six-month time-limit established by Article 35 §
1 of the Convention). The Court can therefore not assess as such the
compatibility of the above conditions of detention with Article 3 of
the Convention.
However, in so far as the applicant’s complaints
relate to healthcare arrangements for HIV and tuberculosis, the
Court’s conclusion is different. Notwithstanding that between
2001 and 2008 the applicant was held in five different facilities,
his allegations of inadequacy of medical assistance during the entire
period (namely, inadequacy of tuberculosis treatment and complete
unavailability of HIV therapy) are sufficiently similar and can be
characterised as a continuing situation (see, mutatis mutandis,
Nedayborshch v. Russia,
no. 42255/04, § 24, 1 July 2010).
The Court also finds that certain allegations concerning, prima
facie, the physical conditions (namely, being largely confined to
a cell with a lack of exercise and fresh air) are so closely
connected to the complaints of ineffective treatment of pulmonary
tuberculosis, that it would be artificial to discount them in the
overall examination of the healthcare arrangements. By the same
token, the applicant’s complaint of the incompatibility of the
physical conditions of his detention in Penitentiary no. 47 with his
state of health (for example, the cell being damp and cold),
should, in the circumstances of the present case, be examined in the
light of his more general complaint of incompatibility of the
physical conditions of his detention with his healthcare needs (see,
for example, Ukhan v. Ukraine,
no. 30628/02, §§ 81 83,
18 December 2008).
The
Court finds that the applicant’s complaints, in so far as they
relate to medical assistance and the compatibility of the physical
conditions of his detention with his state of health throughout the
period of his detention between 2001 and 2008, are sufficiently
consistent and detailed and not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
(b) Ill-treatment by the officers of
Penitentiary no. 47
In
so far as the applicant’s complaints relate to wilful
ill-treatment by the officers of Penitentiary no. 47, he has not
presented any evidence that this treatment was habitual, endorsed or
deliberately tolerated by either the domestic penitentiary system as
a whole or even the management of Penitentiary no. 47. The Court,
therefore, agrees with the Government that the applicant should have
made the authorities aware of his alleged suffering in this respect
(see Aliev v. Ukraine (no. 2) (dec.), no. 33617/02, 14 October
2008).
In
the meantime, notwithstanding that the case file contains copies of
the applicant’s numerous complaints to various authorities
about different aspects of his medical treatment and the physical
conditions of his detention, the only document containing reference
to the officers’ alleged misconduct is a handwritten copy of an
application to the Shevchenkivsky District Court of Kyiv dated 14
June 2006. There is no indication whether this particular document
was ever received by or even despatched to the addressee.
In
these circumstances the Court finds that the applicant failed to show
that he had exhausted domestic avenues for redressing his complaints
about the officers’ conduct and upholds the Government’s
objection of non exhaustion.
This
part of the application should therefore be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
B. Merits
The
applicant asserted that the physical conditions of his detention and
medical assistance for HIV and tuberculosis were incompatible with
his state of health. In particular, although the authorities had been
well aware of his medical condition upon his placement in custody in
March 2001, he had not received any HIV therapy throughout the period
complained about. As regards tuberculosis, no treatment was made
available to him until the end of May 2001, after which time
treatment was prescribed but remained largely ineffective. The
applicant’s state of health was further aggravated by the poor
physical conditions of his detention, including a lack of heating,
hot water, exercise and fresh air.
The
Government contested this view. They submitted that the applicant had
been systematically supervised by competent doctors, had undergone
the necessary tests on numerous occasions and had obtained treatment
in accordance with medical prescriptions. They further noted that, as
a result of effective therapy, by the end of 2008 some positive
dynamics had been achieved in respect of the applicant’s
tuberculosis and he had been preparing for HIV therapy.
The
Court notes that the applicant’s general state of health
appears to have deteriorated during the period of his detention (see
paragraphs 27, 28, and 30 above). While the Court is unable to
compare the applicant’s current and previous HIV status in the
absence of the necessary records, his tuberculosis has progressed. In
spring 2001 the applicant was suffering a low-intensity tuberculosis
infection in the upper right lung. Notwithstanding a few instances of
positive dynamics following the administration of antibiotics, the
infection recurred on several occasions, eventually spreading to both
lungs and becoming chronic, as well as leading to tissue destruction
and the formation of tuberculomas by 2008. In addition, by August
2008 the applicant was diagnosed with other infectious diseases
(hepatitis and chronic bronchitis).
Analysing
to what extent the Government may be held responsible for the
deterioration of the applicant’s health in the light of the
general principles established in its case-law (see Ukhan v.
Ukraine, cited above, §§ 72-74), the Court notes
the apparent lack of systematic and strategic supervision and
conditions of detention reasonably adapted to his state of health,
which, in its view, was indispensible given the applicant’s
particular condition.
While
the applicant consulted medical specialists, underwent various tests
and received medicine on a number of occasions, based on the
available materials, no conclusion can be made that these measures
were prompt, coherent and regular. The synopsis of the applicant’s
medical history contains abundant information as regards certain
periods (for example, data concerning blood and urine tests from the
period of November 2006 to December 2007), but no data has been
presented whatsoever for other periods (such as from March to May
2001 and March 2002 to September 2004). Moreover, it appears that on
certain occasions the authorities themselves acknowledged the
inadequacy of the applicant’s medical support (namely, in
spring 2001 the SIZO governor requested the applicant’s release
in view of the unavailability of treatment facilities and in autumn
2006 the applicant was transferred to a different penitentiary
following his persistent complaints of insufficient healthcare
arrangements).
Some
of the therapeutic measures appear to have been taken with
prohibitive delay. In particular, for some six years the applicant
was continuously prescribed the same “first-line”
anti-tuberculosis medication in spite of the fact that the infection
kept recurring and progressed to both lungs. It was not until
February 2007 that some of these drugs were replaced with
“second-line” antibiotics following a drug-resistance
test, which, according to the applicable guidelines (developed in
January 2005, see paragraph 41) was recommended to be taken in the
early stages of treatment.
Yet
other standard therapies, indicated in the applicable guidelines,
appear to have never been contemplated, or at least recorded. As
regards tuberculosis, the applicant’s treatment consisted
solely of the prescription of antibiotics, a special diet and,
occasionally, vitamins. There is no information that any alternative
(such as surgical) or complimentary (such as anti-pathogenic,
physiological, rehabilitation) strategies (seeparagraphs 43 - 45
above) were ever implemented or even explored.
As
regards HIV, the Court finds it unacceptable that no therapy
whatsoever was provided to the applicant during the entire period in
issue (more than eight years). The Court considers that this delay
cannot be explained by the medical tactics of preferential treatment
for tuberculosis (see paragraphs 16 and 48 above). There is no record
to suggest that HIV therapy was discussed during the several periods
when the applicant’s tuberculosis was inhibited (for example,
in March 2002 and February 2005 – see paragraph 28 above).
Moreover, according to the applicable guidelines, HIV treatment in
tuberculosis patients is expected to be commenced immediately if the
level of CD-4 immunity cells, which is advised to be monitored every
few months, drops below a particular threshold. In any event, this
treatment is expected to be contemplated within months of the
administration of the tuberculosis therapy. The applicant, in the
meantime, was denied tests to establish his count of CD-4 cells for
numerous years in a row. In the absence of the level of his immunity
cells being monitored, it may not be excluded that the applicant’s
recovery from tuberculosis was impeded by the absence of HIV therapy.
Finally,
as provided in the applicable guidelines, particular importance in
the treatment of tuberculosis is attached to adhering to a specific
hygiene and exercise regime (see paragraphs 42-43 above). There is
nothing to suggest whether any special hygiene or exercise regime was
developed for the applicant in the present case. The Court notes
first of all that according to the Ukrainian legislation it is
generally expected that tuberculosis treatment be administered in
specially equipped hospitals (see paragraphs 38, 40 and 41 above). It
is notable that in the present case, the applicant spent over two
years in penitentiary no. 47, designed for healthy inmates. It
appears that for extensive periods of time he was confined to a
common prison cell, at times sharing it with other inmates. In the
absence of any information from the Government to the contrary, it
also appears that at least during his stay in Penitentiary no. 47,
the applicant was likewise generally expected to follow the basic
exercise–rest regime established for healthy inmates (namely,
confined to the cell without outdoor exercise for most of the day and
generally not allowed to lie on the bed during the day).
In
so far as the applicant raises other complaints of incompatibility of
his detention conditions with his state of health (in particular,
damp and cold cells and insufficient hot water for hygiene purposes),
the Court notes that these allegations, disputed by the Government,
have not been established “beyond reasonable doubt”.
However, regard being had to absence of documentary evidence on the
Government’s behalf, a statement by G. (the applicant’s
occasional cellmate) and the general deterioration of the applicant’s
health (including the development of pneumonia in May 2005 and
chronic bronchitis by August 2008), the Court finds his description
credible and is prepared to conclude that the physical conditions of
the applicant’s detention were not properly adapted to his
healthcare needs.
The
Court refers to the findings of the Committee for the Prevention of
Torture following its visit to Ukraine (see paragraph 49 above) and
considers that obliging prisoners to stay in an establishment lacking
suitable facilities for appropriate treatment of tuberculosis or
refusing them access to such facilities is unacceptable. In addition,
when inaccessibility of adapted detention conditions is followed by
failure to segregate healthy inmates from those sick with contagious
diseases, such as tuberculosis, can not only provoke severe physical
and mental suffering in a prisoner needing treatment, but facilitate
dissemination of the disease and have serious adverse consequences
for the prison population as a whole.
Overall,
in the light of the findings concerning the lack of a comprehensive
approach to the applicant’s medical supervision and treatment
for tuberculosis and HIV and failure to ensure physical conditions
reasonably adapted for his recovery process, the Court considers that
the State authorities have not done what could be reasonably expected
of them to discharge their Convention duty under Article 3 vis-à-vis
the applicant. As a result he was subjected to inhuman and degrading
treatment.
There
has therefore been a violation of this provision.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant also alleged that he did not have
at his disposal an effective domestic remedy for his complaints under
Article 3, as required by Article 13 of the Convention. This
provision reads as follows:
“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.”
A. Admissibility
80. The
Government referred to their arguments concerning non exhaustion
of domestic remedies, summarised in paragraph 52 above and contended
that the applicant should have complained about his grievances to the
Prosecutor’s Office and the domestic courts.
81. The
applicant insisted that these remedies were ineffective.
82. The
Court refers to its findings in paragraphs 61 and 65 above and
observes that the applicant has made out an arguable claim under
Article 3 only in so far as his allegations concerned the adequacy of
medical assistance for HIV and tuberculosis and the compatibility of
the physical arrangements of his detention with his state of health.
It finds, therefore, that his complaint under Article 13 of a
lack of effective remedies for these complaints must be declared
admissible.
83. As
regards the remainder of the claim, it must be dismissed in
accordance with Article 35 §§ 3 and 4 of the Convention.
B. Merits
The
Court points out that Article 13 of the Convention guarantees
the availability at the national level of a remedy to enforce the
substance of Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. It notes that
the Ukrainian law contains certain provisions, which may enable
prisoners to complain about violations of their rights (see
paragraphs 35-37 above). However, with reference to its earlier
case-law (see, among other authorities, Melnik v. Ukraine,
cited above, §§ 113-116 and Ukhan,
cited above,
§§ 91-92) and the
circumstances of the present case, the Court finds that the
Government have not proved that the applicant had in practice an
opportunity to obtain effective remedies for his complaints, that is
to say, the remedies, which could have prevented the violations from
occurring or continuing, or could have afforded the applicant
appropriate redress.
The
Court concludes, therefore, that there has been a violation of
Article 13 of the Convention on account of the lack of an
effective and accessible remedy under domestic law for the
applicant’s complaints in respect of his treatment in and the
conditions of detention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained under Article 6 § 1 of the Convention
that, in view of the fact that he suffered from Aids and
tuberculosis, it was unfair to sentence him to life imprisonment. He
also complained that he had not had access to a court in view of the
fact that his submissions were rejected for lack of territorial
jurisdiction and that no court clerk had been made available to him
to assist in the proper preparation of his complaint. Lastly, the
applicant invoked Articles 2 and 14 of the Convention in respect of
the facts of the present case, without further substantiation.
However,
in the light of all the material before it, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the provisions relied upon by the applicant.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed 50,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government submitted that this claim was exorbitant and
unsubstantiated.
The
Court finds that the applicant must have
suffered non-pecuniary damage on account of the violations found;
however, the requested amount is excessive. Making its decision on an
equitable basis, the Court awards the applicant 8,000 euros (EUR) in
respect of non-pecuniary damage plus any tax that may be chargeable.
B. Costs and expenses
The
applicant, who had also been granted legal aid, claimed EUR 2,000
in legal fees for his representation before the Court.
The
Government noted that the applicant had not provided any documents in
support of his claim.
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, regard being had to
the fact that the applicant had been granted legal aid and to the
fact that he did not provide any evidence in support of his claim,
the Court gives no award.
C. Default interest
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 UNANIMOUSLY
Declares the complaints concerning the quality
of medical assistance and compatibility of the physical conditions of
the applicant’s detention with his health and the
unavailability of effective remedies in this respect admissible and
the remainder of the application inadmissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000
(eight thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to be converted into the national
currency of Ukraine at the rate applicable on 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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
