European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF KUSHNIR v. UKRAINE

 

(Application no. 42184/09)

 

 

JUDGMENT

 

 

 

 

 

 

 

STRASBOURG

 

11 December 2014

 

 

 

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 Kushnir v. Ukraine,

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

          Mark Villiger, President,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          André Potocki,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 18 November 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 42184/09) 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 Dmytro Valentynovych Kushnir (“the applicant”), on 2 August 2009.

2.  The applicant was represented by Ms L.S. Mnushkina, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr Nazar Kulchytskyy.

3.  The applicant alleged, in particular, that he had been unlawfully deprived of his liberty on 3 July 2009. He also complained that he had been detained in poor conditions and without due medical care.

4.  On 21 May 2012 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1983. His present place of residence is unknown.

A.  Criminal proceedings against the applicant preceding or concurrent with those examined in the present case

6.  On 5 October 2005 the applicant was found guilty of fraud and sentenced to two years’ restriction of liberty.

7.  In March 2007 criminal proceedings were instituted against him on suspicion of robbery, theft and illegal drug dealing committed in 2005 and 2007. The applicant was detained as a suspect within this set of proceedings from 8 to 23 March 2007 and from 10 September 2007 to 21 October 2008. During the remaining period of the pre-trial investigation he was bound by an undertaking not to leave his town of residence.

8.  On 21 October 2009 the Shevchenkivskyy District Court of Kyiv (“the Shevchenkivskyy Court”) found the applicant guilty as charged and sentenced him to four years’ imprisonment, which also absorbed the outstanding part of the sentence of 5 October 2005 (see paragraph 6 above).

9.  On 9 April 2010 the Kyiv City Court of Appeal upheld that judgment.

10.  The case file contains no further information about the aforementioned proceedings.

B.  Criminal proceedings against the applicant instituted in July 2009

11.  On 3 July 2009 Mr B. lodged a complaint with the police to the effect that the applicant had robbed him of a mobile phone on 22 June 2009 (the applicant had then been at liberty subject to an undertaking not to leave his town of residence - see paragraph 7 above).

12.  On 3 July 2009, at about 7 p.m., the applicant was summoned to the Shevchenkivskyy District Police Station no. 2 (ТВМ-2 Шевченківського РУ ГУМВС у м. Києві) by a telephone call. According to him, he could not refuse given that he was bound by the undertaking not to leave the town, which also implied his obligation to obey any police summonses. As the applicant further submitted, he was arrested in the police station upon his arrival there without any explanation. According to the report of the police officer involved, the latter had “invited [the applicant] to the police station on suspicion of having committed the criminal offence alleged by [Mr B.]”.

13.  It appears that the applicant was held in the police station overnight (see, in particular, paragraph 27 below). The case file contains his written explanations to the police dated 3 July 2009 regarding the events of 22 June 2009. He admitted that he had met Mr B., but denied his involvement in the robbery.

14.  On 4 July 2009 a criminal case was opened against the applicant on suspicion of having robbed Mr B.

15.  On the same day, at 2.15 p.m., the police issued a report, according to which the applicant had been apprehended at 2 p.m. on 4 July 2009 in the premises of the police station on suspicion of having committed a crime. The applicant signed the report with a comment that he had nothing to say. He also signed extracts from the Constitution and the legislation on pre-trial detention as regards his procedural rights, as well as a waiver of his right to legal assistance.

16.  On 4 July 2009 the applicant was questioned as a suspect and denied that he was guilty.

17.  On 7 July 2009 the investigator applied to the Shevchenkivskyy Court for an order remanding the applicant in custody pending trial, stating as reasons the applicant’s previous criminal record and the severity of the alleged offence, which was punishable with imprisonment for up to six years. The investigator considered that if the applicant remained at liberty, there was a risk that he would abscond or hinder the investigation.

18.  On the same date, having upheld the investigator’s reasoning, the Shevchenkivskyy Court remanded the applicant in custody for two months.

19.  On 31 August 2009 the court extended the applicant’s pre-trial detention to three months, having taken into account “the volume of investigative measures still to be undertaken”.

20.  From 25 August to 22 September 2009 the applicant was held in the Kyiv City Centre of Forensic Psychiatric Expert Examinations with the aim of clarifying whether he could be held criminally liable.

21.  On 19 October 2009 the Shevchenkivskyy Court opened the trial. It dismissed the applicant’s request for the custodial preventive measure to be replaced by an undertaking not to abscond.

22.  On 26 July 2010 the court remitted the case for additional pre-trial investigation.

23.  On 14 February 2011 the Shevchenkivskyy Court held a preliminary hearing. It upheld the custodial preventive measure in respect of the applicant.

24.  On 6 March 2012 the court convicted the applicant as charged and sentenced him to six years’ imprisonment.

25.  The Court has not been made aware of any further developments in these domestic proceedings.

C.  Alleged ill-treatment of the applicant by the police on 3 July 2009 and its investigation

26.  The applicant alleged that, following his arrest on 3 July 2009, he had been “severely beaten” by the police. The applicant did not provide any factual details of his alleged ill-treatment or of any injuries sustained.

27.  According to the applicant, on the morning on 4 July 2009 his mother had received a phone call from a person who had been detained in the same police station and released that morning. The applicant had asked him to pass a message to her stating that he was detained there and that he had been questioned and ill-treated by the police.

28.  As further submitted by the applicant, his mother had contacted the police station in order to verify that information, but was told that her son was not there. She had therefore complained to the police and the prosecution authorities about his disappearance.

29.  According to the Government, on 4 July 2009 the police had notified the applicant’s mother about his arrest and invited her to come to collect his belongings, which she did. She also signed a receipt to that effect.

30.  On 8 July 2009 the applicant was taken to the Kyiv Pre-Trial Detention Centre (the SIZO) (Київський слідчий ізолятор). His medical examination, which was carried out on the same day, did not reveal any injuries, and the applicant did not mention to the doctors that he had been ill-treated. His only complaint was about epigastric pain (see also paragraph 51 below).

31.  On 13 July 2009 the applicant’s mother complained to the police and to the prosecution authorities about the alleged ill-treatment of her son in police custody. She also stated that he suffered from a number of contagious diseases and could not therefore be held in detention.

32.  On 25 July 2009 the applicant underwent surgery for acute appendicitis and peritonitis.

33.  On 28 July and 2 August 2009 the applicant’s mother complained to the prosecution authorities that the need for surgery on her son had been the direct consequence of his alleged ill-treatment on 3 July 2009.

34.  On 5 August 2009 the Investigative Unit of the Kyiv Main Police Department (СУ ГУМВС України в місті Києві) completed its internal inquiry into the matter. As noted in the inquiry report, on 4 July 2009 the applicant’s mother had signed a receipt confirming that she had collected her son’s belongings from the police station. She had therefore been aware of his arrest. Furthermore, there was no evidence that any coercion had been used on the applicant. Accordingly, his allegation of ill-treatment was found to be without basis.

35.  On 16 August 2009 the SIZO doctors, acting on the instruction of the prosecution authorities, examined the applicant to establish if there were any traces of the alleged ill-treatment. None was discovered.

36.  On 21 August 2009 the Shevchenkivskyy District Prosecutor’s Office refused to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment considering it unfounded since there was no evidence of any criminal behaviour by the police in relation to him.

37.  On 27 August, 5 and 21 October and 2 November 2009 the prosecutor sent letters to the applicant’s mother informing her of the aforementioned decision. According to the applicant, none of those letters reached his mother.

D.  Physical conditions of the applicant’s detention in the SIZO

38.  The applicant was detained in the SIZO from 8 July 2009 to 2 July 2012.

39.  Without specifying in which cells he had been held and for how long, the applicant described his cells as severely overcrowded, poorly ventilated and damp.

40.  According to the information provided by the Government, the applicant was held in the following cells:

- cell no. 341, measuring 13.2 sq. m (shared by 6 detainees);

- cell no. 14, measuring 31.6 sq. m (shared by 24 detainees);

- cell no. 101, measuring 60.9 sq. m (shared by 38 detainees);

- cell no. 260, measuring 21 sq. m (shared by 2 detainees);

- cell no. 277, measuring 29.9 sq. m (shared by 5 detainees);

- cell no. 270, measuring 27.6 sq. m (shared by 4 detainees);

- cell no. 273, measuring 24.6 sq. m (shared by 4 detainees);

- cell no. 33, measuring 51.8 sq. m (shared by 8 detainees);

- cell no. 85, measuring 20.8 sq. m (shared by 10 detainees);

- cell no. 331, measuring 12.7 sq. m (shared by 6 detainees);

- cell no. 18, measuring 9.1 sq. m (shared by 4 detainees);

- cell no. 142, measuring 9.4 sq. m (shared by 3 detainees);

- cell no. 74, measuring 9.5 sq. m (shared by 4 detainees); and

- cell no. 274, measuring 20.0 sq. m (shared by 4 detainees).

41.  According to the Government, the conditions in those cells were adequate and they were equipped with the requisite furnishings and facilities. The windows and the ventilation system allowed fresh air to circulate and a satisfactory level of natural and artificial lighting was provided.

42.  On 23 May 2011 the SIZO governor informed the prosecutor of the Kyiv City Prosecutor’s Office in charge of the supervision of lawfulness in prisons that during the period from 1 February to 1 April 2011 the applicant had changed cells five times. Specifically, on 1 February 2011 he was placed in cell no. 33, on 23 February 2011 in cell no. 101, on 5 March 2011 in cell no. 101 again (apparently after a stay in the medical unit), on 11 March 2011 in cell no. 260, and on 1 April 2011 in cell no. 33. The SIZO governor explained those transfers by the fact that the applicant had often been held in the SIZO medical unit, given his poor state of health.

E.  Coercive measures used on the applicant in the SIZO

43.  On four occasions the applicant was placed in a disciplinary cell for keeping prohibited items (in three cases a mobile telephone and in one case cash): on 14 July 2010, 22 October 2011, 12 December 2011 and 29 February 2012. On each occasion he was held in a disciplinary cell for one day, with the exception of 14 July 2010, when he was placed there for two days. In every case a medical specialist of the SIZO confirmed that the measure in question was compatible with the applicant’s state of health.

44.  On 14 July 2011 the applicant’s mother complained to the Prosecutor General’s Office that on 8 July 2011 the SIZO administration had administered emetics to the applicant in order to establish whether any drugs were present in his body. She submitted that it had been an unjustified, humiliating and dangerous measure.

45.  On 17 August 2011 the Kyiv Regional Office of the State Prison Department (Управління Державного департаменту України з питань виконання покарань в м. Києві та Київській області) informed the prosecution authorities, in response to the complaints by the applicant’s mother, that the applicant was under the close scrutiny of medical specialists on account of a number of illnesses and that his numerous medical examinations had not revealed any injuries. Furthermore, the applicant had never complained to any authorities or doctors of having been ill-treated during his detention. He had also given a written refusal to make any comment about his mother’s complaints.

46.  On 25 October 2011 the applicant’s lawyer complained to the SIZO governor that her client had been unjustifiably incarcerated, and that on 13 and 19 October 2011 he had been beaten by persons wearing masks.

47.  On 9 November 2011 the head of the SIZO medical unit replied that the applicant’s allegations were unfounded and that he had not made any complaints himself.

F.  The applicant’s state of health and medical care in detention

48.  In 2004 the applicant was diagnosed with tuberculosis for the first time.

49.  In May 2007 he tested HIV-positive. In November 2007 his condition was assessed as clinical stage 3 HIV and AIDS. He was registered for monitoring in the AIDS Centre at the place of his residence.

50.  The applicant also suffers from chronic viral hepatitis B and C.

51.  On 8 July 2009, upon his arrival at the SIZO, the applicant underwent a medical examination and X-ray, which revealed post-tuberculosis residual lung changes. His height and weight were recorded as 180 cm and 74 kg respectively. The applicant complained of epigastric pain. He also informed the doctors of his past medical history of viral hepatitis B and C, and his HIV-positive status (see also paragraph 30 above).

52.  On 15 July 2009 the applicant was examined by two tuberculosis specialists, who confirmed the diagnosis of post-tuberculosis residual changes in the right lung and recommended further medical supervision.

53.  On 25 July 2009 the applicant was taken from the SIZO to the emergency hospital, where he underwent surgery in respect of acute appendicitis and peritonitis. The case file does not contain any information as to whether anything had led up to that emergency. Nor did the applicant submit any factual details in that regard, apart from his broadly-couched allegation, in reply to the Government’s observations, that the emergency had been a result of his ill-treatment (see paragraph 99 below).

54.  According to the information provided by the Government, from 30 July to 6 November 2009 the applicant was given in-patient post-surgery medical treatment in the SIZO medical unit. The applicant contested this information as untruthful, referring to the fact that from 25 August to 22 September 2009 he had been undergoing forensic psychiatric expert examination in the Kyiv City Psychiatric Hospital (see also paragraph 20 above). The case file contains an extract from the applicant’s medical file held in the SIZO, according to which he received in-patient treatment in the SIZO medical unit from 30 July to 25 August 2009.

55.  On 9 October 2009 the applicant was X-rayed. Following the discovery of a focal shadow on the right lung, it was recommended that he consult a specialist.

56.  On 16 October 2009 a tuberculosis specialist examined the applicant and found that he had focal tuberculosis of the upper lobe of the right lung at an unclear stage of development. The doctor prescribed a trial chemotherapy regimen consisting of isoniazid, pyrazinamide, rifampicin and ethambutol.

57.  On 13 November 2009 the applicant again underwent chest X-rays, which showed focal tuberculosis of the upper lobe of the right lung in the consolidation stage. The radiologist recommended that the applicant consult a tuberculosis specialist.

58.  On 17 November 2009 the applicant was invited to undergo another X-ray, but he refused.

59.  On 23 and 25 November and on 9 December 2009, at the applicant’s request, a dentist examined him. The diagnosis was chronic multiple complicated caries related to poor dental hygiene, as well as tongue candidiasis. The applicant was provided with some medication, ointment and vitamins, and had the decayed tooth roots removed.

60.  On 9 December 2009 the applicant was also examined by a specialist in infectious diseases and underwent a CD4 test[1]. Its result was 618 cells/cu. mm.

61.  On 1 April 2010 the applicant underwent X-rays, the findings of which were the same as on 13 November 2009.

62.  On 6 June 2010 the applicant was X-rayed again, with no pathological indications having been revealed.

63.  On 29 November 2010 the applicant was due to undergo X-rays, but was unable to because he was not feeling well.

64.  On 23 December 2010 a radiologist recommended (it is not known in what circumstances) that the applicant consult a tuberculosis specialist.

65.  On 18 March 2011 the applicant underwent further X-rays. He was diagnosed with pneumonia triggered by tuberculosis, post-tuberculosis residual changes in the form of focal consolidations in the lower lobe of the left lung, and bronchitis. The radiologist recommended that the applicant consult a tuberculosis specialist.

66.  Although the applicant’s medical file shows that he underwent in-patient treatment for pneumonia in the SIZO medical unit from 11 to 30 March 2011, on 15 August 2012 the State Prison Department informed the Agent of the Government, who was collecting information for the purpose of preparing observations for submissions to the Court, that this information “had turned out to be unconfirmed”.

67.  On 24 March 2011 the applicant again underwent a CD4 test. Its result was 898 cells/cu. mm.

68.  On 11 April 2011 another such test was undertaken, which showed the CD4 count as 836 cells/cu. mm.

69.  On 21 April 2011 the applicant underwent another X-ray, which revealed post-tuberculosis focal consolidations in the lower lobe of the right lung. It was recommended that the applicant consult a tuberculosis specialist.

70.  Following a complaint from the applicant’s mother regarding the failure to administer antiretroviral therapy to her son, on 26 April 2011 the SIZO administration informed her that the applicant was undergoing treatment for tuberculosis and that a consultation by an infectious diseases specialist was needed to decide about antiretroviral therapy.

71.  On 29 April 2011 the applicant was examined by a tuberculosis specialist, who found that he had no active-phase tuberculosis and that his general state of health was good.

72.  On 16 August 2011 the applicant’s X-rays showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage.

73.  On 21 August 2011 the applicant was examined by a tuberculosis specialist, who prescribed him seasonal relapse prevention therapy with two antibacterial drugs (ethambutol and rifampicin) for ninety days, starting on 10 October 2011 and also a special diet. According to the applicant, this prescription was not implemented in practice.

74.  On 8 November 2011 the applicant complained of moderate general weakness and heaviness in the right hypochondrium and was examined again by the tuberculosis specialist. As a result, his ninety-day relapse prevention therapy was slightly modified.

75.  On 22 November 2011 the tuberculosis specialist examined the applicant again, with no dynamics noted. The doctor recommended continuation of the treatment and a repeated CD4 test. It is not clear whether that test was carried out.

76.  On 6 January 2012 the applicant underwent X-rays which showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage.

77.  On the same date the applicant was examined by two tuberculosis specialists, who diagnosed a recurrence of tuberculosis. They recommended a drug susceptibility test and prescribed isoniazid, rifampicin and ethambutol.

78.  On 14 May 2012 the applicant had his chest X-rayed. There was a limited fibrosis in the right lung and a suspected ring-shaped shadow on the left lung. The applicant was diagnosed with infiltrative tuberculosis of the upper lobes of both lungs.

79.  On 25 May 2012 he was examined by a tuberculosis specialist, who prescribed continuation of the treatment of 6 January 2012.

80.  On 5 July 2012 the applicant was transferred to the Zhovtnevska prison no. 17 (Жовтневська виправна колонія № 17) in the Kharkiv region - where there was a hospital specialising in tuberculosis - for the purposes of serving his sentence.

81.  According to the applicant, during his detention in the SIZO his weight dropped from 87 kg to 52 kg. He had previously indicated his height as 188 cm. The entry in his medical file in the Zhovtnevska prison upon his arrival there stated his height as 180 cm and his weight as still 74 kg (see also paragraph 51 above).

82.  On an unspecified date following the applicant’s transfer to the Zhovtnevska prison (before 28 September 2012 - see paragraph 84 below) his drug susceptibility was tested. It revealed that the applicant was infected with strains of tuberculosis resistant to two of the first-line drugs with which he had been treated before.

83.  On 7 September 2012 he was examined by an infectious diseases specialist, who diagnosed him with chronic persistent hepatitis in the remission stage.

84.  On 28 September 2012 the applicant was examined by the Head of the Phthisiology and Pneumonology Department of the Kharkiv Medical Academy of Post-Graduation Studies, who prescribed an individual scheme of chemotherapy for him, given his resistance to certain drugs.

85.  On 30 September 2012 the applicant underwent a CD4 test. Its result was 469 cells/cu. mm.

86.  On 5 October 2012 an infectious diseases doctor from the Kharkiv Regional AIDS Centre examined the applicant and diagnosed tuberculosis, oropharyngeal candidiasis and chronic viral hepatitis.

87.  Also on 5 October 2012 the applicant was examined by a tuberculosis specialist from the Kharkiv Medical Academy, who reported positive developments as a result of the treatment and recommended its continuation.

88.  According to the extract from the applicant’s medical file issued by the Zhovtnevska prison administration, the applicant was released from detention on 26 October 2012 on the ground of poor health. It was recommended that he register for monitoring in the local AIDS centre and that he continue his treatment for tuberculosis in the place of his residence.

89.  None of the parties has submitted to the Court any details as to the circumstances of and the reasons for the applicant’s release. The applicant noted summarily that he “was transferred for treatment in [his] place of residence as his treatment [in detention] had not been successful.”

II.  RELEVANT DOMESTIC LAW

90.  Relevant provisions regarding medical treatment for tuberculosis and HIV infection in detention are quoted in the judgment in the case of Logvinenko v. Ukraine (no. 13448/07, §§ 38-48, 14 October 2010).

III.  RELEVANT INTERNATIONAL MATERIAL

91.  A 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 (“the CPT”) from 9 to 21 September 2009 (CPT/Inf (2011) 29) reads:

“C. Establishments under the authority of the State Department on Enforcement of Sentences

1. Preliminary remarks

74. The delegation observed for itself that the overcrowding was particularly acute in the Kyiv SIZO, where there was some 1 sq. m of space per prisoner in certain cells, with inmates sharing beds or sleeping on the floor.

2. Torture and other forms of ill-treatment

77. [...] at the Kyiv SIZO, there were indications that, in a few cases, the use of “special means” may have been disproportionate and misused as a form of punishment. Further, at the latter establishment, the delegation heard an allegation that prisoners were beaten during a cell search.

The CPT recommends that the management of the Kyiv SIZO [...] continue to deliver to custodial staff the clear message that the ill-treatment of inmates is not acceptable and will be dealt with severely.

5. Conditions of detention of the general prison population

a. pre-trial establishments (SIZOs)

 i) the SIZO in Kyiv

100. The SIZO in Kyiv occupies a complex of buildings in one of the central areas of Kyiv. Some of the detention buildings had been constructed some 140 years previously.

With an official capacity of 2,950 places, on 8 September 2009 the establishment was holding 3,440 inmates. The vast majority of the inmate population was on remand.

101. The vast majority of the cells holding male prisoners were seriously overcrowded (for example, 52 prisoners in a cell measuring some 50 m² and containing 40 beds; 32 prisoners in a cell measuring 33 m² and containing 20 beds). In some cells, the number of prisoners exceeded the number of beds available, and inmates took turns to sleep on the available beds or slept on the floor. The cells were packed with double bunk-beds, leaving very little space for any other furniture. In some cells, there were TV sets which belonged to the occupants.

Because of the human mass, ventilation was almost non-existent and the cells were very hot and stuffy. The level of hygiene was also highly unsatisfactory: in some cells the delegation saw cockroaches, and prisoners also referred to the presence of mice and rats. The in-cell sanitary installations (a partitioned toilet and sink) were generally in a decrepit state and were clearly not sufficient for the numbers of inmates held in the larger cells.

The negative consequences of the deplorable material conditions described above were compounded by the fact that some prisoners had spent lengthy periods of time at the SIZO. In the CPT’s view, the combination of negative factors to which a large number of prisoners were subjected at the Kyiv SIZO (overcrowding, appalling material conditions and levels of hygiene, and practically non-existent activity programmes) could easily be described as inhuman and degrading treatment.

b. staff, facilities and medication

125. The health-care service of the Kyiv SIZO had a staff complement of 31.5 posts (all of which were filled). Full-time staff included a head doctor, three GPs, a pulmonary specialist, a psychiatrist, a radiologist, a venero-dermatologist, two dentists, seven [medical attendants] and five nurses. Further, ten visiting specialists held regular surgeries (of three hours per week). The [medical attendants] provided a 24-hour presence. According to the head doctor, more specialists in infectious diseases were needed, in view of the high number of prisoners suffering from such diseases.

Given the increase in the inmate population at the Kyiv SIZO, the above-mentioned health-care staffing resources are clearly insufficient to provide appropriate care to some 3,400 prisoners. Despite the staff’s efforts and goodwill, this shortage of staff had detrimental effects on the quality of care. Not surprisingly, the delegation heard many complaints about considerable delays in access to a doctor.

As regards the facilities of the medical unit, some of the cells had been refurbished and offered appropriate conditions. However, other cells were awaiting renovation.

The CPT recommends that the Ukrainian authorities take urgent steps at the Kyiv SIZO to:

- reinforce significantly the health-care staff team with additional feldshers and/or nurses;

- employ additional doctors, in particular specialists in infectious diseases;

- refurbish the remainder of the cells in the medical unit.”

92.  The relevant extracts from the World Health Organisation (WHO) Guidelines on Treatment of Tuberculosis (1997) can be found in the judgment in the case of Vasyukov v. Russia (no. 2974/05, § 50, 5 April 2011).

93.  The relevant WHO materials on an immunological evaluation of patients and application of the antiretroviral therapy can be found in the judgment in the case of E.A. v. Russia, no. 44187/04, §§ 30-35, 23 May 2013).

THE LAW

I.  ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

94.  The applicant complained under Article 3 of the Convention that he had been beaten by the police following his arrest on 3 July 2009. Relying on Article 13 of the Convention, he also complained that there had not been any adequate domestic investigation into the matter. The applicant further complained under Article 3 that the physical conditions of his detention in the SIZO had been appalling, that he had unjustifiably been placed in a disciplinary cell on several occasions and that other coercive measures had been used on him. He also complained, with reference to Article 2 of the Convention, that he had not been provided with adequate medical care in detention.

95.  The Court considers it appropriate to examine all the above complaints under Article 3 of the Convention, which reads:

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

A.  Admissibility

1.  Alleged ill-treatment of the applicant on 3 July 2009 and effectiveness of the subsequent investigation

96.  The Government submitted that this complaint was manifestly ill-founded. They drew the Court’s attention to its vagueness and the lack of any documentary or other evidence in its support.

97.  They further noted that the applicant had undergone a comprehensive medical examination upon his arrival at the SIZO on 8 July 2009, which had revealed no injuries. The Government contended that, since only four days had passed since the applicant’s alleged beating, its traces could not have possibly disappeared by that time. The Government also observed that the applicant had not complained of his ill-treatment to the SIZO doctors or any other doctors who had examined him.

98.  Lastly, the Government observed that the applicant had not challenged the decision of the prosecuting authorities dismissing his allegations.

99.  The applicant contested those arguments, without, however, providing any factual details regarding his alleged ill-treatment. According to him, the mere fact that on 25 July 2009 he had needed urgent surgery for acute appendicitis and peritonitis was sufficient evidence of his ill-treatment by the police.

100.  In his opinion, the authorities had not made any meaningful efforts to investigate his complaint.

101.  As regards the decision of the Shevchenkivskyy District Prosecutor’s Office of 21 August 2009 refusing to institute criminal proceedings into the matter, the applicant submitted that he had not been aware of it.

102.  The Court reiterates that applicants are expected to submit at the very least a detailed account of the facts complained of and to provide - to the greatest possible extent - some evidence in support of their complaints (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010, and Gavula v. Ukraine, no. 52652/07, § 58, 16 May 2013).

103.  The Court notes that the applicant’s complaint of ill-treatment in the present case is confined to a general statement that he was beaten. He gave no factual information as to the circumstances or methods of his alleged beating. Furthermore, he failed even to mention, let alone to specify, the injuries he had allegedly sustained.

104.  The Court also notes that, even though the applicant had been examined by various doctors as part of the standard procedure of his admission to the SIZO and also thereafter on account of his health problems, he had never mentioned having sustained any injuries in police custody.

105.  Furthermore, contrary to the applicant’s argument, in the absence of relevant medical evidence the Court cannot discern any connection between his alleged ill-treatment on 3 July 2009 and his acute appendicitis and peritonitis diagnosed on 25 July 2009 (see paragraphs 32 and 53 above).

106.  In such circumstances it does not appear that the applicant has substantiated his claim that he was ill-treated by agents of the State on 3 July 2009 (see Birutis and Others v. Lithuania (dec.), nos. 47698/99 and 48115/99, 7 November 2000).

107.  The Court observes that the applicant’s allegations at the domestic level were equally general and vague. They cannot therefore be regarded as amounting to an arguable claim of serious ill-treatment triggering the procedural obligation under Article 3 of the Convention for the State to conduct an effective investigation into them (see Gavula, cited above, § 61, and Igars v. Latvia (dec.), no. 11682/03, § 72, 5 February 2013).

108.  The Court thus rejects the applicant’s complaints of ill-treatment by police and the allegedly ineffective investigation as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

2.  Coercive measures allegedly used on the applicant during his detention in the SIZO

109.  The Court notes that the applicant’s complaint concerns the following issues: his allegedly wrongful and unjustified placement in a disciplinary cell; the allegation that emetics were forcibly administered to him; and the allegation of his beating by unknown persons wearing masks.

110.  As regards the first-mentioned issue, the Government argued that the applicant’s placement in a disciplinary cell had been a legitimate measure, given the established facts of his breaches of the prison rules. In so far as the two last-mentioned issues are concerned, the Government submitted that the applicant’s complaint in that regard was too vague and lacked both factual detail and evidence.

111.  The applicant did not submit any observations in reply to those made by the Government.

112.  The Court notes that the applicant did not dispute that he had breached the prison rules. The Court also attaches weight to the medical endorsement of his placement in a disciplinary cell (see paragraph 43 above). Furthermore, the Court is mindful of the brevity of the applicant’s stay there (one day on three occasions and two days on one occasion - ibid.).

113.  As regards the applicant’s allegations that emetics were administered to him and that he was beaten by some unknown persons wearing masks, in the absence of any further submissions from the applicant or any information or documents in the case file which could shed light on these matters, the Court regards these allegations as too vague to constitute arguable claims under Article 3 of the Convention. The Court also notes that, although the applicant remained under constant medical monitoring, some of which was carried out by civilian doctors, he never discussed these allegations with any of those doctors.

114.  All in all, the Court considers this complaint to be manifestly ill-founded as regards all three issues raised therein and dismisses it under Article 35 §§ 3 (a) and 4 of the Convention.

3.  Physical conditions of detention and medical care in the SIZO

115.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  Physical conditions of the applicant’s detention in the SIZO

116.  On his application form the applicant described the cells in which he had been held as severely overcrowded, poorly ventilated and damp (see paragraph 39 above).

117.  The Government maintained that the applicant’s complaint was not specific. They contended that the conditions of his detention had been adequate (see paragraph 41 above).

118.  The applicant did not submit any further observations in reply to those of the Government.

119.  The Court reiterates that, under Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, and that the manner and method of execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).

120.  The Court accepts the Government’s argument in the present case that the applicant did not provide a detailed description of the conditions of his detention. Indeed, he described neither the cells in which he had been detained, nor the periods of his detention there, nor the living space afforded per detainee.

121.  Nonetheless, the Court considers that the applicant’s chief grievance - that of severe overcrowding in the Kyiv SIZO - can still be regarded as having a sufficient basis in the circumstances at hand.

122.  As suggested by the figures submitted by the Government, the applicant was detained in fourteen different cells where the living space per detainee varied from 1 to 10 sq. m. More specifically, it was slightly over 1  sq. m in two cells, about 5 sq. m in five cells, about 6 sq. m in three cells, almost 7 sq. m in one cell, and about 10 sq. m in another cell (see paragraph 40 above). The Government failed to specify the length of the applicant’s detention in the cells with larger living space per inmate. On the other hand, it appears that at times the applicant had only about 1 sq. m of personal space, which is absolutely unacceptable even for a healthy detainee, let alone one suffering from tuberculosis and with a number of other serious health problems, as in the applicant’s case.

123.  The Court further observes that the applicant’s complaint about the physical conditions of his detention in the Kyiv SIZO relates to the period between July 2009 and July 2012. It notes that it has already found a violation of Article 3 of the Convention in the case of Gavula (cited above, §§ 69-75), in which the applicant had raised a similar complaint of overcrowding pertaining to his detention there, in particular, from July 2009 to August 2010.

124.  The Court also notes that the overcrowding and poor ventilation in the SIZO in 2009 were acknowledged in the CPT’s report (see paragraph 91 above).

125.  The Court considers this sufficient to conclude that the physical conditions of the applicant’s detention in the SIZO amounted to inhuman and degrading treatment contrary to the requirements of Article 3 of the Convention. There has accordingly been a violation of that Article.

2.  Medical care provided to the applicant in the SIZO

(a)  The parties’ submissions

126.  The applicant contended that he had not been afforded proper medical care during his detention in the SIZO.

127.  He complained, in particular, that he had been discharged from the hospital too early after the operation of 25 July 2009, and that he had not been provided with any post-surgery treatment in the medical unit of the SIZO.

128.  The applicant also blamed the authorities for the recurrence of his tuberculosis and its unsuccessful treatment. He alleged that he had not received regular, adequate attention for this condition and that no seasonal (autumn and spring) relapse-prevention treatment had in fact been offered to him, despite having been formally prescribed. The applicant submitted that he had been released with untreated tuberculosis.

129.  He also complained that he had not been given antiretroviral therapy for his HIV infection.

130.  Lastly, he alleged that he had not received any dental treatment and that, by the time of his release, he had lost some teeth.

131.  The Government drew the Court’s attention to the fact that the applicant had contracted tuberculosis and HIV before the period of his detention under examination in the present case. They noted that any possible negative developments could well have been a natural result of that condition, given its rather long history. The Government argued that, in any event, there had been no significant deterioration in the applicant’s health during his detention in the SIZO.

132.  As regards the failure to provide antiretroviral therapy, the Government submitted that there had been no indications for it in the applicant’s case. They noted that his treatment for tuberculosis had remained a priority from the medical perspective, and that the condition of his immune system had been regularly monitored.

133.  The Government also submitted that the applicant had been provided with adequate dental treatment, as well as the requisite post-surgery treatment following the operation of 25 July 2009.

(b)  The Court’s assessment

134.  The Court has emphasised on many occasions that the health of detainees has to be adequately secured (see Kudła, cited above, § 94). A lack of appropriate medical care may amount to treatment contrary to Article 3 of the Convention (see İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII, and Sarban v. Moldova, no. 3456/05, § 90, 4 October 2005).

135.  The Court has also held in its case-law that the mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance provided 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 of the detainee’s state of health and his treatment while in detention (see, for example, Khudobin v. Russia, no. 59696/00, § 83, 26 October 2006; that the diagnoses and care are prompt and accurate (see Hummatov, cited above, § 115, and Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006); and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy that seeks, to the extent possible, to cure the detainee’s diseases or to avoid aggravating them, rather than to address them on a symptomatic basis (see Hummatov, cited above, §§ 109 and 114; Sarban, cited above, § 79; and Popo 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). At the same time the Court notes that in assessing the adequacy of the treatment it must be guided by the due diligence test, since the State’s obligation to cure a seriously ill detainee is one as to means, not as to result (see Goginashvili v. Georgia, no. 47729/08, § 71, 4 October 2011).

136.  On the whole, the Court reserves a fair degree of flexibility in defining the standard of health care required, 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, § 140, 22 December 2008).

137.  Turning to the present case, the Court notes at the outset that the applicant’s complaint is confined to the period of his detention in the SIZO. As regards the medical care in the Zhovtnevska prison, to which the applicant was transferred on 5 July 2012 and from which he was released on 26 October 2012 owing to poor health, the Court observes that he did not make any submissions in this respect other than the general statement that his treatment had been unsuccessful (see paragraph 89 above).

138.  It is undisputed that the applicant had a number of serious health problems, such as HIV, as well as a history of tuberculosis and viral hepatitis, and that he had made the authorities aware of those concerns from the very beginning of his detention (see paragraph 51 above). Accordingly, his condition warranted special medical attention.

139.  As regards the failure to administer antiretroviral therapy to the applicant, the Court is of the opinion that the domestic authorities undertook sufficient measures to determine the severity of his immunodeficiency by means of a regular CD4 cell count (see paragraphs 60, 67, 68 and 85 above). Having regard to the results of the aforementioned CD4 tests, the medical specialists did not deem it necessary to resort to the antiretroviral therapy in the applicant’s case. Given that their approach appeared concordant with the WHO guidelines (follow the reference in paragraph 93 above), the Court has no reasons for questioning their findings (contrast with E.A. v. Russia, no. 44187/04, § 63, 23 May 2013).

140.  The Court likewise does not discern any serious deficiencies in the applicant’s treatment following the operation on 25 July 2009 or the dental care provided to him.

141.  This conclusion cannot, however, be extended to the medical treatment afforded to the applicant in respect of the tuberculosis infection.

142.  The Court has noted evidence of the poor medical assistance and protection against tuberculosis in Ukrainian detention facilities in a number of cases against Ukraine (see, for instance, Yakovenko v. Ukraine, no. 15825/06, §§ 97-102, 25 October 2007; Pokhlebin v. Ukraine, no. 35581/06, §§ 63-68, 20 May 2010; and Kondratyev v. Ukraine, no. 5203/09, § 72, 15 December 2011). In the case of Kondratyev (cited above, § 72) it further stated that, even though a number of improvements had recently been reported in respect of the treatment of tuberculosis in Ukrainian prisons, the Court had to note concerns about multiple-drug-resistant tuberculosis in prisons and the fact that Ukraine still had one of the highest incidences of tuberculosis in Europe.

143.  It does not escape the Court’s attention in the present case that the applicant contracted tuberculosis prior to the period of his detention under examination. It notes, however, that he suffered a recurrence of the disease while in custody. As the Court has earlier held in its case-law, the absence or inadequacy of tuberculosis treatment, particularly when the disease has been contracted or reactivated in detention, is most certainly a subject of concern. The Court is therefore bound to assess the quality of medical services offered to the applicant in the present case (see Pakhomov v. Russia, no. 44917/08, § 65, 30 September 2010).

144.  As regards the development of the applicant’s condition, the Court is not convinced that his diagnoses were made in a correct and timely manner. The Court thus observes that initially the applicant had focal tuberculosis of the right lung only. Subsequently, he was found to have recovered from it. Later on, his left lung was found to have been affected too. Further on, the diagnosis again referred only to the right-lung post-tuberculosis changes. Then the applicant was found to be in good health. However, just a few months later he was diagnosed with infiltrative tuberculosis of the left lung. Finally, he was found to have suffered a recurrence of tuberculosis in both lungs (see, in particular, paragraphs 56, 62, 65, 69, 71, 72 and 78 above).

145.  The Court also notes that, although tuberculosis specialists examined the applicant on many occasions and prescribed treatment, there is no evidence that the treatment was in fact followed through. Nor is there any evidence that the applicant was provided with the special diet that was needed to improve his health (contrast Vasyukov v. Russia, no. 2974/05, §§ 70-71, 5 April 2011). It also appears that on at least four occasions the recommendation of the radiologist that the applicant be examined by a tuberculosis specialist remained unheeded (see paragraphs 57, 61, 64 and 65 above).

146.  The Court next observes that, according to the information in the case file, a drug susceptibility test was not recommended for the applicant until 6 January 2012 and was actually performed at some time after 5 July 2012, whereas the applicant had been detained since July 2009 and the recurrence of his tuberculosis infection was already evident in October 2009 (see paragraphs 55, 77 and 82 above). The test revealed the applicant’s resistance to two of the drugs with which he had earlier been treated (if indeed he had been treated). Had it been performed in the initial stages of the diagnostic process in line with the WHO’s recommendations (see paragraph 92 above), it would have guided the choice of an appropriate treatment regimen that could have been effective in the applicant’s particular case (see and compare with Pakhomov, cited above, § 67, and Reshetnyak v. Russia, no. 56027/10, § 86, 8 January 2013).

147.  The Court also notes that, although the Ukrainian authorities admitted that the information in the applicant’s medical file about the treatment received for pneumonia triggered by tuberculosis was inaccurate, they failed to provide any factual details as to what treatment he had actually received (see paragraph 66 above).

148.  The Court has noted in the case of Logvinenko v. Ukraine, (cited above, § 74) that - as provided in the applicable domestic guidelines in Ukraine - in the treatment of tuberculosis particular importance is attached to following a specific hygiene and exercise regime. As in that case (ibid.), there is nothing to suggest that any special hygiene or exercise regime was developed for the applicant in the present case. The Court’s finding above that the applicant spent three years in the SIZO in conditions of severe overcrowding and poor hygiene (see paragraphs 123-125 above) is a clear indication to the contrary.

149.  In the light of all the foregoing, the Court finds that the applicant did not receive adequate medical treatment for tuberculosis during his detention in the SIZO.

150.  Accordingly, there has been a violation of Article 3 of the Convention on that account.

II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

151.  The applicant complained under Article 5 of the Convention about the alleged unlawfulness of his arrest and the length of his pre-trial detention, as well as his inability to obtain a proper judicial review. He relied on Article 5 §§ 1, 3 and 4 of the Convention, which reads, in so far as relevant:

Article 5

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial ...

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A.  Admissibility

1.  Lawfulness of the applicant’s arrest (Article 5 § 1)

152.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Length of pre-trial detention and the judicial review of its lawfulness (Article 5 §§ 3 and 4)

153.  The Court notes that the applicant remained in pre-trial detention within the meaning of Article 5 § 1 (c) of the Convention from 3 July 2009 to 6 March 2012 (see paragraphs 12 and 24 above).

154.  It is mindful, however, of the concurrent proceedings against the applicant, as a result of which he was convicted and sentenced to four years’ imprisonment on 21 October 2009 (see paragraphs 6-9 above). Given that his pre-trial detention within the above-mentioned proceedings lasted for less than a year (see paragraph 7 above), the sentence left to serve was about three years, to be calculated from the date of the verdict. Accordingly, it was due to be completed in October 2012.

155.  In the absence of any submissions from the applicant, the Court considers it established that the verdict of 21 October 2009 became final and enforceable.

156.  It follows that the applicant’s detention after that date was based both on sub-paragraph (a) of Article 5 § 1 (within the aforementioned proceedings) and on sub-paragraph (c) of that provision (within the proceedings instituted on 3 July 2009). Given that the applicant has not raised any complaints regarding his detention resulting from the verdict of 21 October 2009, the Court is satisfied that it complied with the requirements of Article 5 § 1 (a) of the Convention.

157.  As the Court has held in the cases of Borisenko v. Ukraine (no. 25725/02, § 44, 12 January 2012) and Ustyantsev v. Ukraine (no. 3299/05, § 82, 12 January 2012), Article 5 § 3 of the Convention does not apply to situations amounting to “lawful detention after conviction by a competent court” within the meaning of Article 5 § 1 (a) of the Convention. The Court has found it difficult to see any practical purpose in requiring the State authorities to justify the detention of an applicant under Article 5 §§ 1 (c) and 3 of the Convention when such detention was justified under Article 5 § 1 (a). The Court has further held that any request for release in such cases would thus be limited to the purely hypothetical question of whether the person could be released if he was not already serving a prison sentence. Therefore, even if the applicant’s continuing detention within the meaning of Article 5 § 1 (c) ceased to be reasonable, it would not automatically cease to be lawful and justified under Article 5 § 1 (a).

158.  Accordingly, the period to be taken into consideration in the present case under Article 5 § 3 is from 3 July to 29 October 2009, which cannot be regarded as excessive.

159.  In the light of the above considerations, the Court also considers Article 5 § 4 of the Convention to be inapplicable to the applicant’s situation following his “lawful detention after conviction by a competent court” in a different set of proceedings, as there was no prospect of release for him thereafter.

160.  The applicant’s complaint about the impossibility of obtaining a proper judicial review of the lawfulness of his pre-trial detention within the criminal proceedings initiated against him on 4 July 2009 ceased to be of relevance when he was convicted in the concurrent proceedings on 29 October 2009. As regards the earlier period of his detention, the Court does not discern any serious deficiencies in the judicial review of its lawfulness.

161.  The Court therefore dismisses the applicant’s complaints under Article 5 §§ 3 and 4 as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

B.  Merits

162.  The applicant stated that he had been arrested on 3 July 2009 in an unlawful and arbitrary manner.

163.  The Government stated that the applicant had actually been arrested on 4 July 2009 in order to bring him before a judge on suspicion of having committed a crime.

164.  The Court reiterates that the list of exceptions to the right to liberty enshrined in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see, among other authorities, Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports of Judgments and Decisions 1997-IV; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 60, ECHR 2012).

165.  In this connection, the Court observes that the absence of a custody record must in itself be considered a serious failing, as it has been the Court’s settled view that the unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a grave violation of that provision. The absence of any record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005).

166.  In the present case, it follows from the available evidence that the applicant was arrested shortly after 7 p.m. on 3 July 2009 (see paragraph 12 above). He was further questioned by the police late that evening (see paragraph 13 above). Nonetheless, his arrest was documented only at 2 p.m. on 4 July 2009 following the institution of criminal proceedings against him on that date (see paragraphs 14 and 15 above).

167.  Therefore, the Court concludes that the applicant was arrested on 3 July 2009 in the absence of any decision in this regard and kept in unacknowledged detention until the next day (compare with Gavula, cited above, §§ 79-90).

168.  The Court therefore considers that there has been a violation of Article 5 § 1 of the Convention.

III.  OTHER ALLEGED VIOLATIONS

169.  The applicant also complained under Article 6 of the Convention that the criminal proceedings initiated against him on 4 July 2009 were fabricated and that he had not had access to a lawyer at the initial stages of the investigation.

170.  In the absence of any information on the developments in the proceedings in question following the applicant’s conviction by the first-instance court on 6 March 2012 (see paragraphs 24 and 25 above), the Court dismisses this complaint for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

171.  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.”

172.  The applicant’s lawyer, although having received the Court’s letter inviting her to submit any just satisfaction claims on behalf of the applicant and containing a detailed explanation concerning their formulation and submission, did not submit any claims for just satisfaction. The Court therefore makes no award in this respect.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the applicant’s complaints under Article 3 of the Convention about the physical conditions of his detention and the lack of adequate medical care available to him in the Kyiv SIZO, as well as his complaint under Article 5 § 1 concerning his arrest on 3 July 2009 and detention until 4 July 2009, admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 3 of the Convention on account of the physical conditions of the applicant’s detention in the Kyiv SIZO;

 

3.  Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical care for the applicant in the Kyiv SIZO;

 

4.  Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s arrest on 3 July 2009 and detention until 4 July 2009.

 

Done in English, and notified in writing on 11 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek                                                                Mark Villiger
       Registrar                                                                              President




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[1] CD4 cell-count testing is an immunological evaluation guiding the initiation of the antiretroviral therapy (ART). According to the WHO guidelines of 2006, antiretroviral therapy was to be applied when CD4 count was at ≤200 cells/ cu. mm. The 2010 revision of the guidelines raised that threshold to ≤350 cells/cu. mm (ART should be started regardless of the presence or absence of clinical symptoms). Information taken from: http://whqlibdoc.who.int/publications/2010/9789241599764_eng.pdf