(Application no. 13448/07)
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,
Mirjana Lazarova Trajkovska,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant and his detention record
B. Treatment for HIV and tuberculosis, and the physical conditions of the applicant’s detention
1. The applicant’s account of events
2. The Government’s account of events
C. Ill-treatment by the officers of Penitentiary no. 47
II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIALS
“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B. Code of Civil Procedure of 1963 (repealed with effect of 1 September 2005)
“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)
“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
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”
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).
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”
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)
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.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Submissions of the parties
2. The Court’s assessment
(a) Healthcare and physical conditions of detention
(b) Ill-treatment by the officers of Penitentiary no. 47
II. ALLEGED VIOLATION OF 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.”
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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
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