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FIFTH
SECTION
CASE OF POKHLEBIN v. UKRAINE
(Application
no. 35581/06)
JUDGMENT
STRASBOURG
20
May 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 Pokhlebin v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35581/06) 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 Dmitriy Viktorovich
Pokhlebin (“the applicant”), on 13 August 2006.
- The
applicant was represented by his mother, Ms R. Ldokova. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that the conditions of his
detention had been unsatisfactory and that he had not been provided
with appropriate medical treatment during his detention.
- On
6 April 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Simferopol.
A. Criminal proceedings against the applicant and
related issues
- On
24 June 2004 the applicant was arrested on suspicion of drug
trafficking. He was initially placed in a cell of the Kyivskyy
District Police Department of Simferopol and subsequently moved to
the Simferopol Pre-Trial Detention Centre (the “Simferopol
SIZO”).
- On
24 December 2004 in view of his poor health the applicant was
released from custody under a written obligation not to abscond.
- On
12 November 2005 the applicant, with two accomplices, picked a
quarrel with and then beat up Mr. A and his son, who were
walking by in the street. During the scuffle the applicant took a
jacket, money, a mobile phone and a bicycle which belonged to the
victims.
- On
16 November 2005 the applicant was arrested for that crime.
- On
19 May 2006 the Kyivskyy District Court of Simferopol found the
applicant guilty of the above crimes and sentenced him to six years'
imprisonment with confiscation of property. The judgment was based on
a number of witness statements, expert opinions, documentary and
material evidence. The applicant appealed.
- On
25 July 2006 the Court of Appeal of the Autonomous Republic of Crimea
dismissed the applicant's appeal and upheld the judgment of the
first-instance court of 19 May 2006. The applicant appealed in
cassation.
- On
13 February 2007 the Supreme Court rejected the applicant's cassation
appeal and upheld the decisions of the lower courts.
- On
3 October 2007 the Hola Prystan Town Court, having regard to the
applicant's poor health and its further deterioration, granted him
early release from prison. On 18 December 2007 that decision came
into effect.
- On
21 December 2007 the applicant was released.
- Subsequently,
the applicant's part of the flat, which is owned jointly by the
applicant and his mother, was attached in the course of enforcement
of the confiscation order.
- According
to the applicant, for an unspecified period of time he was not paid
an invalidity allowance to which he was entitled.
B. Physical conditions of detention in the Simferopol
ITT
1. The applicant's submissions on the facts
- Between
16 November 2005 and 20 July 2006 the applicant was detained in the
Simferopol Temporary Detention Centre (the “Simferopol ITT”).
The cell in which the applicant was held measured 21 sq. m. It
was equipped with six bunks while the number of detainees ranged from
eight to fourteen persons including the applicant. The cell was dim
and badly ventilated because there was only a small window equipped
with metal bars. During that period the applicant was never offered
outdoor exercise; showers were unavailable.
- By letter of 22 December 2005, the Simferopol
Prosecutor's Office, replying to the applicant's complaint, informed
him that the Simferopol ITT was built in 1977 and did not include a
yard for daily exercise outside the cell, nor did it have a bathroom
or shower cabin. He further noted that the Simferopol SIZO refused to
accept detainees with tuberculosis.
2. The Government's submissions on the facts
- According
to the Government, in the Simferopol ITT the applicant was initially
held with the other three detainees in a cell measuring 10 sq. m.
Subsequently, he was held with other five detainees in a cell
measuring 14 sq. m.
- The
cells were equipped with a sufficient number of bunks, and sanitary
units were available there. The ventilation and lighting systems were
operating properly. A shower cabin was installed in the Simferopol
ITT and the detainees could wash themselves weekly.
C. Medical issues
- According
to the applicant, he contracted tuberculosis in June 2004 when he was
being held in a cell of the Kyivskyy District Police Department of
Simferopol.
- In
November 2004, in the course of the applicant's pre-trial detention,
a medical commission issued a report confirming that he suffered from
Aids (since 1997), bronchial tuberculosis (since 2004), chronic
hepatitis, and candidiasis. The commission further concluded that the
medical treatment provided to the applicant in the detention facility
had been ineffective. For this reason the preventive measure in the
applicant's respect was replaced with a non-custodial one and on 24
December 2004 the applicant was released.
- In
February 2005 the applicant underwent a medical examination following
which he was designated as Category 2 (medium-level) disabled on
account of his illnesses.
- During
the applicant's detention in the Simferopol ITT (between 16 November
2005 and 20 July 2006) the applicant was provided with medical
treatment for his illnesses by the medical staff of that facility.
- The
Government, referring to the relevant report of the regional police
department, submitted that in the Simferopol ITT the applicant was
always provided with anti-Aids and anti-tuberculosis pills. Each time
the applicant requested it an ambulance arrived and the necessary
injections were administered. According to the applicant, he did not
undergo any medical examination for his tuberculosis; the anti-Aids
medicine was administered irregularly and without proper
documentation and control; nor were the other illnesses treated
properly.
- From
February 2006 the applicant started to complain of numbness in the
legs.
- On
20 July 2006 the applicant was transferred from the Simferopol ITT to
the Simferopol SIZO where he continued to undergo medical treatment.
- On
11 August 2006 the applicant was moved to the hospital at the
Daryivka no. 10 Prison where he was provided with medical assistance
till 7 September 2006. By the end of that period the applicant
was still suffering from tuberculosis, which at that time had
affected his left lung, and all the other above-mentioned illnesses.
In addition, he had been diagnosed with toxic polyneuropathy and
other less serious illnesses. The medical staff therefore concluded
that the strategy of the applicant's subsequent therapy had to be
reviewed.
- Between
7 September 2006 and 30 January 2007 the applicant was held in the
Simferopol SIZO, the Sofiyivka no. 45 Prison, and the
Dnipropetrovsk Pre-Trial Detention Centre where the medical staff
continued providing treatment to the applicant in respect of his
multiple illnesses.
- On
30 January 2007, following a further deterioration of the applicant's
health, he was returned to the hospital at the Daryivka no. 10
Prison where he was held till 14 March 2007. Following his arrival
the applicant was diagnosed with all the above-mentioned illnesses,
and additionally with spinal tuberculosis, acute maxillary sinusitis
and chronic periodontitis. At the end of the applicant's detention in
that facility all the illnesses remained and the applicant was also
diagnosed with weight loss.
- Between
14 March and 21 December 2007 the applicant was held in the hospital
at the Hola Prystan no. 7 Prison, where he was provided with specific
anti-tuberculosis and anti-Aids treatment. In that period the spinal
tuberculosis progressed to the effect that the applicant became
unable to walk on his own.
- According
to the Government, during that period the applicant refused the
prescribed medical treatment. They referred to the report prepared by
the medical staff on 23 May 2007 documenting that refusal by the
applicant.
- On
6 June 2007 the medical commission, having regard to the
deterioration of the applicant's health, recommended that he be
granted an early release.
- Following
his release on 21 December 2007, the applicant underwent medical
examination and was designated as Category 1 (the highest level)
disabled because of his illnesses.
- It
appears from the latest applicant's submissions that after his
release he recovered the ability to walk on his own.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice is summarised in the judgments of
Dvoynykh v. Ukraine (no. 72277/01, §§ 28-37, 12
October 2006) and Yakovenko v. Ukraine (no. 15825/06,
§§ 48-55, 25 October 2007).
III. RELEVANT INTERNATIONAL MATERIAL
- The
relevant international material is summarised in the judgment of
Melnik v. Ukraine (no. 72286/01, § 47-53, 28 March 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the physical conditions of his detention in
the Simferopol ITT had been unsatisfactory. He further complained
that he had not been provided with appropriate medical assistance
during his detention. The applicant relied on Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Physical conditions of detention in the Simferopol
ITT
1. Admissibility
- The
Government maintained that the applicant had failed to exhaust
domestic remedies, claiming that he should properly have raised that
issue before the prosecutor's offices and the courts.
- The
applicant disagreed.
- The
Court notes that on a number of occasions it has rejected similar
objections by respondent governments as to non-exhaustion of domestic
remedies in respect of complaints about conditions of detention, when
it found that such complaints pointed to problems of a structural
nature in the domestic penitentiary system in question (see, for
example, Kalashnikov v. Russia (dec.), no. 47095/99,
18 September 2001, and Melnik, cited above, §§ 69-71;
Koktysh v. Ukraine, no. 43707/07, § 86, 10
December 2009).
- In
the present case the Court considers that the matters raised by the
applicant under this head are also of a structural nature. It further
notes that the applicant unsuccessfully complained to the
prosecutor's office on account of conditions of his detention in the
Simferopol ITT (see paragraph 18 above). In this situation the Court
cannot reproach the applicant for having failed to make further use
of the domestic remedies suggested by the Government and dismisses
their objection to this effect.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
a. The parties' submissions
- The
applicant, referring to his account of the facts, insisted that the
physical conditions of his detention in the Simferopol ITT amounted
to a violation of Article 3 of the Convention.
- The
Government maintained that the physical conditions of the applicant's
detention in that facility had been adequate. They relied on their
account of facts.
b. The Court's assessment
- The
Court observes that, according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3 of the Convention. The assessment of this minimum
level of severity is relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and
mental effects and, in some cases, the sex, age and state of health
of the victim (see, among other authorities, Ireland v. the
United Kingdom, 18 January 1978, § 162, Series A no. 25).
Furthermore, in considering whether treatment is “degrading”
within the meaning of Article 3, the Court will have regard to
whether its object is to humiliate and debase the person concerned
and whether, as far as the consequences are concerned, it has
adversely affected his or her personality in a manner
incompatible with Article 3. Even the absence of such a purpose
cannot conclusively rule out a finding of a violation of this
provision (see Peers v. Greece, no. 28524/95, §§
67-68 and 74, ECHR 2001-III, and Valašinas
v. Lithuania, no. 44558/98, § 101,
ECHR 2001-VIII).
- The Court has consistently stressed that the suffering
and humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. Measures depriving a person of
his liberty may often involve such an element. In accordance with
this provision the State must ensure that a person is detained in
conditions which are compatible with respect for his human dignity,
that the manner and method of the execution of the measure do not
subject him to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention and that, given
the practical demands of imprisonment, his health and well-being are
adequately secured (see Kalashnikov v. Russia, no. 47095/99,
§ 95, ECHR 2002 VI).
- In
the present case the parties submitted various figures as to the
personal space per detainee during the applicant's detention in the
Simferopol ITT. The figures submitted by the applicant suggest that
he had between 1.5 sq. m. and 2.6 sq. m. of personal
space in that facility. The Government's figures suggest that the
personal space per detainee in that facility ranged from 2.3 to 2.5
sq. m.
- The
Court does not need to resolve this disagreement between the parties.
Having regard to its established case-law on this issue and the
relevant standards of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (which are
quoted, for example, in Kalashnikov, cited above, § 97,
and Melnik, cited above, § 47), the Court considers
that in any event the submissions of both parties show that the
applicant was held in overcrowded conditions, which in itself
discloses a serious issue under Article 3 of the Convention.
- The
Court further notes that the Government failed to rebut the
applicant's assertions that he had never been offered any outdoor
exercise in the Simferopol ITT and that at the relevant time there
had been no specific shower facility there. Those assertions by the
applicant are, however, supported by the official reply of
22 December 2005 from the prosecutor's office (see paragraph 18
above). Furthermore, the Government did not corroborate their
submissions that the ventilation and lighting systems had been
appropriate. In these circumstances the Court is inclined to give
weight to the applicant's submissions on this matter (see Ahmet
Özkan and Others v. Turkey, no. 21689/93, § 426,
6 April 2004). These findings are also corroborated by the
general conclusions of the Parliamentary Commissioner for Human
Rights concerning the physical conditions of detention in the
penitentiary institutions in the Autonomous Republic of Crimea
(referred to by the Court in Koktysh, cited above, §§ 41
and 42).
- The
Court therefore considers that the applicant's detention in
overcrowded conditions was further aggravated by lack of access to
fresh air, which was vitally important in view of his serious health
problems, and by inadequate sanitary conditions, as well as by lack
of appropriate lighting in the cell. The Court is particularly
concerned that the applicant was held in such conditions for more
than eight months.
- The
foregoing considerations are sufficient for the Court to conclude
that the physical conditions of detention of the applicant in the
Simferopol ITT amounted to degrading treatment in breach of
Article 3 of the Convention.
B. Medical treatment of the applicant during his
detention
1. Admissibility
- The
Government contended that the applicant failed to make clear
complaints of inappropriate medical treatment provided to him in the
Simferopol SIZO and the Dnipropetrovsk Pre-Trial Detention Centre.
They asserted therefore that the Court had to refrain from examining
the appropriateness of medication in those facilities. They further
maintained that those issues had not been properly raised before the
prosecutor's officers and the courts.
- The
applicant disagreed.
- The
Court admits that the applicant might not have always made clear
references to the names of the detention facilities when making
submissions under this head. However, it appears from his submissions
that he was complaining not exclusively on account of inappropriate
medication in the facilities which he expressly mentioned, but also
on account of the overall inappropriateness of medication provided to
him throughout his detention. Having regard to the applicant's
submissions in whole, the Court is of the opinion that the
applicant's complaint should be viewed as referring rather to the
entire period of his detention. It therefore rejects the relevant
objection of the Government.
- As to the plea of non-exhaustion, the Court considers
that this part of application refers to a problem of a structural
nature and that the remedies in question would be of no assistance to
the applicant (see, for example, Koval v. Ukraine, no.
65550/01, §§ 96 and 97, 19 October 2006). The Court
holds therefore that the applicant complied with the rule of
exhaustion of domestic remedies.
- Considering
the period of the applicant's detention, which ended with his release
on 24 December 2004, the Court finds that the applicant's complaint
has been lodged more than six months after the date of that release.
It follows that the respective part of the application should be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
- The
Court further notes that the applicant's complaint referring to the
period between 16 November 2005 and 21 December 2007 is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
a. The parties' submissions
- The
applicant submitted that he had not been properly treated for his
serious illnesses during the period in question. In particular, there
had been no perceptible treatment in the Simferopol ITT, the Daryivka
no. 10 Prison, the Sofiyivka no. 45 Prison, and the Hola
Prystan no. 7 Prison. In view of the constant and serious
deterioration of his health, the applicant contended that the medical
care had been manifestly insufficient and this amounted to
ill-treatment prohibited by Article 3 of the Convention.
- The
Government maintained that the applicant received appropriate
treatment during his detention. They further argued that the
applicant himself was partly responsible for the aggravation of his
illnesses, as at a certain point he refused to undergo prescribed
therapy.
b. The Court's assessment
- The
Court notes that Article 3 imposes an obligation on the States to
protect the physical well-being of persons deprived of their liberty.
The Court accepts that the medical assistance available in prison
hospitals may not always be of the same level as in the best medical
institutions for the general public. Nevertheless, the State must
ensure that the health and well-being of detainees are adequately
secured by, among other things, providing them with the requisite
medical assistance (see Kudła v. Poland [GC],
no. 30210/96, § 94, ECHR 2000-XI, and Hurtado v.
Switzerland, 28 January 1994, Series A no. 280-A). Where the
authorities decide to place and maintain in detention a person who is
seriously ill, they should take special care to guarantee conditions
which correspond to his special needs resulting from his disability
(see Price v. the United Kingdom, no. 33394/96, § 30,
ECHR 2001 VII, and Farbtuhs v. Latvia, no. 4672/02, § 56,
2 December 2004).
- 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 the treatment he underwent 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 illness or preventing its
aggravation, rather than addressing it on a symptomatic basis (see
Hummatov,
cited above, §§ 109, 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).
- In
the present case the Court considers that the applicant's poor
health, in particular that he was suffering from Aids, tuberculosis,
chronic hepatitis and candidiasis, called for special medical care on
a regular, systematic and comprehensive basis.
- The
Court accepts that certain medical treatment was provided to the
applicant in the detention facilities and the prison hospitals.
Nevertheless, the Court observes that with the lapse of time that the
applicant spent in detention his health significantly deteriorated:
he acquired a number of new conditions such as occasional leg
numbness, toxic polyneuropathy, acute maxillary sinusitis, chronic
periodontitis, and weight loss. Furthermore, the applicant's
tuberculosis became so much worse that it affected his spine,
following which the applicant – for a certain period of time –
became unable to walk on his own.
- While
accepting that the applicant could be reproached for refusal to
undergo medical treatment in May 2007, as contended by the
Government, the Court cannot shift all the responsibility from the
Government to the applicant by this mere fact. It notes that that
refusal was at the later stage of the applicant's detention, when his
spinal tuberculosis and all the other newly acquired conditions had
already been diagnosed and when all the previous lingering
therapeutic programmes failed to be effective.
- The
Court further notes that the applicant was granted early release
because of the deterioration of his health, and that following his
release he was designated as Category 1 disabled, which was the
highest category under domestic rules.
- Accordingly,
having regard to the seriousness of the applicant's illnesses and
also to the domestic law requirement providing that the prisoners
suffering from tuberculosis should be held in specialised prison
hospitals, the Court considers that the measures taken by the
domestic authorities had not been sufficient.
- In
the light of the above considerations, the Court holds that the
medical care dispensed to the applicant during his detention between
16 November 2005 and 21 December 2007 was inadequate and
amounted to a violation of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that his detention in the Simferopol ITT had
been in breach of Article 5 of the Convention since that facility was
not appropriate for a long-term detention of a person. He further
complained under Article 6 of the Convention that the proceedings in
his criminal case had been unfair. He also complained that his rights
under the Convention had been violated by the enforcement of the
confiscation order adopted in his criminal case. Lastly, the
applicant complained that he was not paid invalidity allowance for a
certain period of time.
- Having
considered the applicant's submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 33,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 in respect of non-pecuniary damage.
- The
Government submitted that these claims were unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court has no doubt that the applicants must have
sustained non pecuniary damage as a result of the violations
found. Making its assessment on an equitable basis, as required by
Article 41 of the Convention, it awards the applicant EUR 7,000
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 9,031.37 Ukrainian hryvnias (UAH)
or EUR 1,000 for travel, postal, and other expenses
incurred in the course of proceedings before the domestic authorities
and the Court.
- The
Government maintained that the applicant's claim had not been
supported by appropriate evidence.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 20 covering
costs under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 3 of the
Convention concerning the physical conditions of the applicant's
detention in the Simferopol ITT and the lack of appropriate medical
treatment during his detention between 16 November 2005 and
21 December 2007 admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of inadequate physical conditions of
the applicant's detention in the Simferopol ITT;
- Holds that there has been a violation of Article
3 of the Convention on account of inappropriate medical treatment
during the applicant's detention between 16 November 2005 and 21
December 2007;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
sums, to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement:
(i) EUR
7,000 (seven thousand euros) in respect of non-pecuniary damage;
(ii) EUR 20
(twenty euros) in respect of costs and expenses;
(iii) plus
any tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
