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URL: http://www.bailii.org/eu/cases/ECHR/2012/1160.html
Cite as: [2012] ECHR 1160
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FIFTH SECTION
Application no. 49872/11
Yuliya Volodymyrivna TYMOSHENKO
against Ukraine
lodged on 10 August 2011
STATEMENT OF FACTS
THE FACTS
The original facts and complaints in this case have been summarised in the Court’s initial Statement of Facts and Questions to the Parties.
The applicant was convicted on 11 October 2011 to seven years’ imprisonment for alleged abuse of office. Her case is currently pending before the Supreme Court.
On 30 December 2011 the applicant was sent to the Kachanivka Colony in Kharkiv to serve her prison sentence. The case was communicated to the Government under Rule 54 of the Rules of Court on 14 December 2011.
From October 2011 the applicant experienced severe pain in her back and practically stopped moving on her own.
On 15 March 2012 the Court applied an interim measure under Rule 39 and requested the Government “to ensure that the applicant receives treatment appropriate to her complaints in an appropriate institutionalized setting”. It also asked additional questions under Rule 54 concerning the applicant’s treatment in Kharkiv prison (see below under Questions to the Parties nos. 1 and 2).
On 16 March 2012 the Government brought medical equipment from nearby hospitals to the prison. On the next day, the applicant was offered a lumbar puncture in the medical ward. She refused to undergo this medical procedure on the ground that it is a surgical procedure which has to be performed in a surgical operating room and the ward had no proper conditions of sterility and lacked appropriate medical equipment.
On 15, 22, 24 and 25 March 2012 the applicant submitted written requests for medical treatment and complained about the lack of that treatment to the colony administration. On 26 and 30 March 2012 the head of the administration offered the applicant treatment in the medical unit of the colony and also allowed her to choose between two medical institutions to get a paravertebral blockade. The applicant asked to consult Mr Mykola Polischuk, neurologist, who had been her doctor in Kiyv SIZO no. 13 and whose diagnoses had been fully confirmed by the German doctors who examined the applicant in February 2012. The head of the administration refused the participation of Mr Polischuk referring to conclusions of 7 March 2012 which allegedly reflect the common position of the Ukrainian and German doctors.
On 27 March 2012 the applicant refused to be treated either in the Regional Clinical Hospital – Centre of Urgent Medical Treatment and Disaster medicine or the Institute of Spine and Joint Pathology named after Dr. Sitenko to get a paravertebral blockade.
On 4 April 2012 the applicant was offered a transfer to the Central Clinical Hospital of the State Railway. On 13-15 April 2012 German doctors from the Charité Hospital in Berlin examined the applicant and checked the quality of the hospital suggested by the Government. They admitted the cleanness of the hospital and sincere attempts of doctors to be open, friendly and respectful, at the same time as emphasizing that in the short time available to them, they could not assess whether the doctors were able to offer the complex underlying treatment needed.
On 20 April 2012 the Court invited the Government to inform it, by 27 April 2012, what steps had been taken by them to comply with the terms of the interim measure.
On the same day at 11pm the applicant was transferred to the Central Clinical Hospital of the State Railway. According to her, she objected to the transfer and force was used. As a result, the applicant was allegedly bruised and has a hematoma on her stomach and number of hematomas on her hands. She refused to receive any medical treatment due to, in her view, the inappropriateness of that hospital for her needs as indicated in German doctor’s report of 17 April 2012.
The applicant announced a hunger strike in protest at the violence by the prison’s guards and her enforced transfer to a hospital.
On 22 April 2012 she returned to the colony. On the next day she filed a complaint with the Kharkiv Prosecutor Office about her forceful transfer to the hospital. The prosecutor apparently confirmed that force had been used by the colony staff but decided not to investigate the case further. The applicant’s complaint was eventually dismissed.
On 25 April 2012 the ombudsman made a public statement on the applicant’s health condition after the ombudsman’s representative visit to the applicant of 24 April 2012 confirming the existence of the hematomas on the applicant’s body.
The applicant was reluctant to give permission for her medical examination by Ukrainian doctors.
Still on 25 April 2012 she submitted a new request for interim measure under Rule 39 of Rules of Court, asking that the Government be ordered to use immediately all available means at their disposal and ensure that the applicant is provided with adequate treatment in the Charité Hospital in Germany.
On 4 May 2012 she informed the Court that the Ukrainian legislation does not provide for a possibility of outside doctors (both Ukrainians and foreigners) to take part in the treatment in a particular hospital if they are not employed by it.
On the same day the Government informed the Court that they would grant an exception to the aforesaid rule and allow the German doctors to join the Ukrainian medical team of the Central Clinical Hospital of the State Railway in Kharkiv and participate in the applicant’s medical treatment which was to start on 8 May 2012.
On 9 May 2012 the applicant was transferred to this hospital where she started her medical treatment under a German neurologist, Professor Harms. On the same day she ended her 20-day hunger strike.
In a letter of 12 May 2012 the applicant’s legal representative stated that the applicant had been under around the clock surveillance even while undergoing medical procedures. The prison authorities had found no breach of the national law or the international standards of privacy protection if the prisoner is under permanent surveillance even while undergoing medical procedures. They also published a full report on the applicant’s medical history, as well as video recordings which they claimed to be from her prison cell in Ukrainian mass media.
The Government were invited to comment on these issues by 22 May 2012.
According to Ukrainian press, Professor Harms left Ukraine on 21 May 2012. Dr Anette Reisgauer, another German doctor, arrived on 24 May 2012, and will continue supervising the applicant’s medical treatment.
In a letter of 21 May 2012 the Government asked the Court to lift the interim measure.
The interim measure applied on 15 March 2012 was lifted on 31 May 2012. On the same day the second applicant’s request for an interim measure, made on 20 April 2012, was rejected and the Government were invited to reply to two supplementary questions (nos. 3 and 4 below).
QUESTIONS TO THE PARTIES
Having regard to the procedural protection from inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In this respect the Government are requested to comment also on the search of the Ombudsman’s office carried by the prosecutor service which seems to be relevant for the applicant’s case.