European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 29964/10
Valentina Vladimirovna BRESLAVSKAYA
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 31 January 2012 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 19 May 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Valentina Vladimirovna Breslavskaya, is a Ukrainian national who was born in 1973 and lives in Donetsk. She is represented before the Court by Mr D. Medvedskiy, a lawyer practising in Donetsk. The Ukrainian Government (“the Government”) were represented by their Agent Mr Yuriy Zaytsev, succeeded by Ms Valeria Lutkovska.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 25 August 2009 the applicant, who was working at the time as an international train manager, was detained on suspicion of attempted cross border smuggling of goods, following a conspiracy by a group. She remained in detention, on the basis of judicial decisions, until she was convicted, on 22 July 2010, by the Voroshylivskyy District Court of Donetsk. By this verdict the court found the applicant guilty as charged and sentenced her to five years’ imprisonment, suspended for three years, and placed her on probation. She was released at the conclusion of the hearing.

The applicant is suffering from a number of kidney, stomach and spinal problems and has a long history of various gynaecological health problems. Thus, since 1994, when she had her left ovary, right fallopian tube and a benign breast tumour removed, she has been being monitored by the Donetsk Regional Cancer Treatment Centre (Донецький обласний протипухлинний центр, hereafter “the Cancer Treatment Centre”).

On 29 August 2009 the applicant (who had been in detention since 25 August, see above) was examined at the Cancer Treatment Centre. The doctor recommended that she undergo additional examination and, if necessary, treatment in their centre.

On the following day, 30 August 2009, the applicant was taken to Gorlivka Town no. 2 Hospital (“the Gorlivka Hospital”), where she underwent inpatient treatment for pyelonephritis (inflammatory kidney disease) for two days.

On 31 August 2009, after her discharge from the Gorlivka Hospital, the applicant was taken back to the Cancer Treatment Centre, where she underwent another medical examination.

From 1 to 14 September 2009 the applicant was hospitalised in the Donetsk Regional Clinical Territorial Medical Association (Донецьке обласне клінічне територіальне медичне об’єднання, hereafter referred to as “the Donetsk Regional Clinic”) for treatment in respect of a number of chronic kidney, gastric and gynaecological conditions. She was examined by doctors including a neuropathologist, a gastroenterologist, a gynaecologist, and an endocrinologist, was prescribed the necessary treatment, and its implementation was monitored. When the applicant was discharged from the hospital it was recommended that she have a further examination by a kidney specialist in about two months’ time.

An X-ray on 9 or 11 September 2009 identified a suspicious shadow on the applicant’s lung. On 14 September 2009 a tuberculotherapist diagnosed her with pneumonia and tuberculosis and prescribed non-specific antibacterial therapy for two weeks, to be followed by an X-ray examination and another consultation.

On 2 October 2009 the administration of the Pre-Trial Detention Centre (“the SIZO”) informed the applicant’s representative in reply to his inquiry that having regard to its limited resources it was not able to provide the applicant with medical treatment in full compliance with the doctors’ recommendations.

From 12 October 2009 to 15 April 2010 the applicant underwent inpatient treatment for tuberculosis in the SIZO medical unit, which consisted of several courses of antibacterial therapy. According to the information submitted by the Government (not commented on by the applicant), she was also examined by tuberculotherapists, including from the Donetsk Regional Tuberculosis Hospital, on 9 October and 8, 11, 16, 17 and 19 December 2009, as well as on 19 February and 15 April 2010. Furthermore, on 24 September, 6 October and 14 December 2009, as well as on 16 February and 13 April 2010, the applicant underwent X-ray examinations. According to the Government, the applicant then recovered from tuberculosis. They referred in this connection to the conclusion of the Donetsk Regional Tuberculosis Hospital of 15 April 2010, according to which the applicant’s radiograph of 13 April 2010 showed post-tuberculosis residual changes in her lungs. Subsequent medical monitoring was recommended in that regard. The applicant however stated that she was still suffering from tuberculosis.

Meanwhile, on 7, 8 and 24 December 2009 the applicant was again examined by the Cancer Treatment Centre specialists, who diagnosed nodal mastopathy and ovarian cyst and recommended anti-inflammatory therapy, additional examination and surgery at their centre.

From 15 April until her release on 22 July 2010 the applicant underwent inpatient treatment in the SIZO medical unit for gastric ulcer, gastroesophageal reflux disease, osteochondrosis and residual encephalopathy.

According to information from the Public Health Ministry, issued on 9 September 2010 at the request of the Government Agent, the applicant had no contact with the Cancer Treatment Centre after 22 July 2010.

From 19 October to 9 November 2010 she was hospitalised in the Kharkiv Regional Urology and Nephrology Clinical Centre for urolithiasis of the left kidney.

On 20 January 2011 the applicant underwent ovarian surgery in the Gynaecology Department of Donetsk Municipal Hospital no. 17, from which she was discharged on 27 January 2011 “in a satisfactory state of health”.

COMPLAINTS

Relying on Article 2 of the Convention, the applicant complained that she had been subjected to inhuman and degrading treatment, because she had been detained despite suffering from many serious illnesses. She also complained that she had not received adequate medical care and that she had contracted tuberculosis while in detention.

THE LAW

The applicant complained that the authorities had failed to duly safeguard her health and well-being in detention.

The Court finds it appropriate to examine the application under Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government maintained that the applicant could not be regarded as having exhausted domestic remedies, as she had never complained to the prosecution authorities or to domestic courts about the quality of her medical care in detention. Moreover, they underlined that the applicant had neither requested any particular medical treatment nor disagreed with the one provided to her. Instead, she had merely sought release on compassionate grounds.

The Government further contended that prompt, coherent and regular medical care had been provided to the applicant during her detention. As to the lack of resources admitted by the SIZO, they submitted that in practice it meant that the applicant’s relatives had had to buy some medication for her. Furthermore, the Government underlined that in the absence of adequately qualified personnel in the SIZO the applicant had ample opportunity to consult different doctors and even to undergo inpatient treatment in civil hospitals where required. Regarding her argument that surgery had been recommended to her but not carried out during her detention, the Government noted that the surgery in question had not been urgent. They noted in that respect that, following her release on 22 July 2010, it was not until January 2011 that the applicant underwent that surgery. Lastly, in so far as she blamed the authorities for her having contracted tuberculosis in detention, the Government pointed out that the applicant had been diagnosed with that disease for the first time two weeks after her placement in detention. Noting that mycobacterium tuberculosis, also known as Koch’s bacillus, may lie dormant in the body for some time without the person exhibiting any clinical signs of the illness, the Government expressed the view that the applicant might have contracted it well before her detention. They underlined that she had been properly treated and had eventually recovered from the tuberculosis.

The applicant advanced the following arguments. Firstly, she complained that it was inhuman to deprive her of liberty at all, given her frail health. Secondly, the applicant submitted that she had not received the required medical treatment during her detention, including the surgery recommended by the Cancer Treatment Centre. She referred in this connection to the letter of the SIZO administration to her lawyer of 2 October 2009 which admitted that the SIZO was limited in its resources and could not therefore provide the applicant with medical treatment in full compliance with doctors’ recommendations. Lastly, she complained that she had contracted tuberculosis while in pre-trial detention.

As regards the Government’s objection based on the non-exhaustion of domestic remedies, the Court emphasises that the only remedies to be exhausted are those which are effective (see, among other references, Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003, and Okhrimenko v. Ukraine, no. 53896/07, § 77, 15 October 2009).

Given its findings in a number of cases against Ukraine about the lack of an effective and accessible remedy under Ukrainian domestic law in respect of complaints concerning medical care in detention (see Melnik v. Ukraine, no. 72286/01, §§ 113-116, 28 March 2006, and Koval v. Ukraine, no. 65550/01, § 98, 19 October 2006), the Court considers that the applicant had no effective domestic remedy at her disposal in the present case either.

Accordingly, the Court rejects this objection of the Government.

It remains however to be seen whether the application complies with the other admissibility criteria under Article 35 of the Convention.

The Court emphasises that Article 3 of the Convention imposes an obligation on States to protect the physical well-being of persons deprived of their liberty (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 XI). At the same time, it cannot be construed as laying down a general obligation to release detainees on health grounds. Rather, the compatibility of a detainee’s state of health with his or her continued detention, even if he or she is seriously ill, is contingent on the State’s ability to provide relevant treatment of the requisite quality in prison (see Goginashvili v. Georgia, no. 47729/08, § 79, 4 October 2011).

The “adequacy” of medical assistance remains the most difficult element to determine. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, §§ 139-140, 22 December 2008).

The Court has held in its case-law that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his treatment while in detention (see, for example, Khudobin v. Russia, no. 59696/00, § 83, ECHR 2006 XII (extracts)), that the diagnoses and care are prompt and accurate (see Hummatov, cited above, § 115, and Melnik, cited above, §§ 104-106), and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation, rather than addressing them on a symptomatic basis (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov v. Russia, no. 26853/04, § 211, 13 July 2006). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116, and Holomiov v. Moldova, no. 30649/05, § 117, 7 November 2006).

Turning to the circumstances of the present case, the Court notes that at the time of her arrest the applicant was suffering from a number of illnesses which warranted appropriate medical supervision and care.

One of the major health concerns she had was related to her long standing gynaecological problems, on account of which she had been being monitored by the Cancer Treatment Centre. The Court observes in this connection that, within four days of her arrest the applicant was given the opportunity to consult a specialist of the Cancer Treatment Centre. She consulted that centre four more times before her release on 22 July 2010, once in August 2009 and three times in December 2009. Furthermore, in September 2009 the applicant was hospitalised for two weeks in the Donetsk Regional Hospital, where a number of doctors including a gynaecologist examined and treated her.

As pointed out by the applicant, in December 2009 a doctor of the Cancer Treatment Centre recommended that she undergo ovarian surgery. During the subsequent seven months when the applicant was in detention (until her release in July 2010), this measure was not carried out. The Court notes, however, that the applicant did not allege any deterioration of her health resulting from this delay. Moreover, it observes that even after her release the applicant waited for about as long again (until January 2011) before undergoing that surgery. Accordingly, the Court agrees with the Government’s argument that the failure of the authorities to ensure that the applicant undergo the aforementioned surgery during her detention does not raise any issues under Article 3 of the Convention.

As regards the applicant’s submission that there were insufficient resources in the detention facility where she was held to meet her medical needs, the Court notes that, even though the SIZO indeed lacked specialist medical staff and funds for procuring specific medicines for the applicant, she was provided with the opportunity to consult civilian doctors and, where required, to undergo inpatient treatment in civil hospitals on many occasions. The applicant did not allege that the treatment prescribed to her by civilian doctors had not actually been followed up. Neither did she complain that she had not been given all the required medications or that the need to buy some of them had placed a heavy financial burden on her relatives. The Court therefore considers that the authorities found reasonable means of overcoming the SIZO’s shortage of staff and funding in ensuring medical care for the applicant during her detention there.

The Court notes that the applicant also complained that she had contracted tuberculosis in detention.

According to the Court’s well-established case-law, even if an applicant had contracted tuberculosis while in detention, this in itself would not imply a violation of Article 3, provided that he or she received treatment for it (see Alver v. Estonia, no. 64812/01, § 54, 8 November 2005, and Pitalev v. Russia, no. 34393/03, § 53, 30 July 2009, with further references).

The Court observes that in the present case the applicant neither complained about the physical conditions of her detention nor alleged that she had ever been exposed to a risk of infection by, for example, sharing cells with inmates suffering from tuberculosis (see and compare with Vasyukov v. Russia, no. 2974/05, § 65, 5 April 2011). Furthermore, she did not criticise the anti-tuberculosis treatment itself which was offered to her in detention, in which civilian hospital doctors were extensively involved (this included at least eight consultations by specialists from the Donetsk Regional Tuberculosis Hospital). Lastly, the Court notes that the Government advanced a quite specific statement, confirmed by medical documentation, that the applicant had eventually recovered from tuberculosis while still in detention. The applicant, in her turn, merely submitted that she was still ill, neither specifying her condition nor mentioning whether or if she had sought any medical treatment for tuberculosis after her release. The Court therefore concludes that, firstly, there is no indication in support of the applicant’s allegation that she contracted tuberculosis in detention, and, secondly, even if this had been the case, there were no delays or deficiencies discernible in her treatment that would suggest a breach of Article 3 of the Convention.

Overall, the Court notes that none of the applicant’s health problems appear to have remained untreated. Thus, she was treated in respect of her gynaecological, gastric, kidney and spinal diseases, as well as for tuberculosis. Apart from general disillusionment with her deprivation of liberty and specific grievances, already found above to be without basis, the applicant did not in fact complain that her treatment had not been prompt, coherent or regular. Bearing this in mind and having regard to the case-file materials and the parties’ submissions, the Court concludes that the authorities did everything which could have reasonably been expected of them to safeguard the applicant’s health and well-being during her detention.

Accordingly, the Court rejects the application as manifestly ill-founded under Article 35 §§ 1 and 3 (a) of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann Registrar President