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FIFTH
SECTION
CASE OF KONDRATYEV v. UKRAINE
(Application
no. 5203/09)
JUDGMENT
STRASBOURG
15
December 2011
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 Kondratyev v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5203/09) 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 Sergey Vasilyevich
Kondratyev (“the applicant”), on 15 January 2009.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Ms Valeria Lutkovska and Mr Yuriy Zaytsev.
- The
applicant alleged, in particular, that the medical assistance he
received in respect of his knee injury and tuberculosis infection was
inadequate, that his detention was unlawful, and that the length of
his detention and the criminal proceedings against him had been
excessive.
- On
1 March 2010 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and is currently serving a prison
sentence.
A. Criminal proceedings against the applicant
- Between
4.25 and 5.30 p.m. on 27 July 2007 the police, in the presence of the
applicant, searched his house and found drugs allegedly belonging to
him. After the search the applicant was taken to the Leninskyy
District Police Station of Sevastopol and questioned about the
matter. He was not allowed to leave the police station. According to
the Government, at an unspecified time on the same day the applicant
was detained under Article 263 of the Minor Offences Code; no
document concerning this has been made available to the Court.
- At
7 p.m. on 28 July 2007 an investigator drew up a detention record,
pursuant to Article 115 of the Code of Criminal Procedure (“the
CCP”), regarding the applicant, who was suspected of drug
dealing committed on 27 July 2007. The applicant was then placed in
the Sevastopol City Temporary Detention Centre (Севастопольський
міський ізолятор
тимчасового
тримання,
“the ITT”).
- According
to the applicant, at the police station he was subjected to
psychological pressure as a result of which he confessed to the
possession of drugs and drug dealing.
- On
30 July 2007 he was charged with drug dealing. Subsequently, new
charges were brought against him and joined to the case. In
particular, he was charged with the illegal possession of drugs in
May-July 2007 and during his detention in Simferopol Temporary
Investigative Isolation Unit no. 15 (Сімферопольський
слідчий ізолятор
№ 15, “the SIZO”).
- By
a decision of 31 July 2007 the Leninskyy District Court of Sevastopol
(“the District Court”) held that it was necessary to make
further enquiries about the applicant and decided to remand him in
custody for ten days. On the same date a lawyer of the applicant’s
own choosing was given permission to take part in the proceedings.
- On 1 August 2007 the Tuberculosis Healthcare Centre in
Sevastopol (“the TB Centre”) issued a certificate
indicating that the applicant had been registered there since 2000
and was suffering from “chronic infiltrative tuberculosis
(“TB”) of the left lung (degeneration phase: MBT+)”,
that he had undergone in-patient medical treatment from 2 to 13 March
2007 and “from 16 April to 28 July 2007, when [he had been]
discharged [from the TB Centre] for a violation of therapeutic
regimen”, and that it was appropriate for him to be held in
cells for persons suffering from an active form of TB.
- On
6 August 2007 the District Court remanded the applicant to the ITT
pending his transfer to the SIZO, without any indication of how long
he would stay there. It noted that the applicant had been convicted
of drug related offences on several occasions, that he was
suspected of having committed a serious crime, and that he had
continued to engage in similar criminal activities after having
served a prison sentence in October 2006. The court also took into
account information obtained from the TB Centre about the applicant’s
health condition.
- According to the applicant, on 9 August 2007 he
appealed against the remand order, stating in particular that he was
not fit enough to remain in detention owing to the TB. On 29
September 2007 he lodged a complaint with the Leninskyy District
Prosecutors’ Office of Sevastopol alleging that from 27 to 28
July 2007 his detention had been unlawful. There is no information as
to the outcome of the appeal and complaint or indication that the
complaint was received by the authorities.
- On
completion of the investigations the applicant’s case was
referred for trial to the District Court, which, according to the
applicant, held its first hearing in the case on 4 November 2007.
According to the Government, this hearing was held on 1 November
2007.
- On
15 May 2008 the applicant was transferred to the SIZO, but was
periodically held at the ITT.
- According to the applicant, on 17 June 2008 he lodged
a complaint with the Leninskyy District Prosecutors’ Office and
the District Court, again alleging that his detention from 27 to 28
July 2007 had been unlawful. No document concerning this has been
made available to the Court.
- In
a judgment of 24 October 2008 the court found the applicant guilty of
the illegal possession of drugs and drug dealing, sentenced him to
two years and six months’ imprisonment and ordered the
confiscation of all his property.
- On
23 December 2008 the Sevastopol Court of Appeal (“the Court of
Appeal”) quashed the judgment, finding that the first-instance
court had not questioned the applicant on each of the charges against
him, and it remitted the case to the latter court for fresh
consideration. The Court of Appeal also ordered the applicant to
remain in detention, without providing reasons or a time-limit for
the continued detention.
- In
2009 the applicant’s representative unsuccessfully tried to
institute administrative court proceedings against the trial court,
mainly for its failure to try the applicant in due time.
- On
29 March 2010 the District Court ordered the Prosecutor’s
Office of the Leninsky District to investigate the applicant’s
complaints of psychological and physical pressure applied to him by
unspecified police officers. On 31 March 2010 a prosecutor, having
interviewed the police officers involved in the applicant’s
arrest and having studied his detention documents, found the
complaints unsubstantiated.
- In
a judgment of 6 April 2010 the District Court convicted the applicant
on four counts of drug dealing and running a centre for the
production and use of illicit drugs, while striking off one count for
want of proof of a crime. The applicant was sentenced to five years’
imprisonment and the confiscation of all his property was ordered.
- According
to the parties’ last submissions, on 16 November 2010 the Court
of Appeal upheld the first instance judgment. The applicant received
a copy of the decision on 25 January 2011. There is no indication
whether he appealed in cassation.
- According to the Government, during the criminal
proceedings the courts and police heard fifteen witnesses and seven
other suspects. Five forensic examinations were carried out.
- Out of the twenty-seven court hearings scheduled in
the course of the proceedings, thirteen were held, while four were
adjourned for unknown reasons, two were adjourned due to both
witness’s failure to appear and the applicant’s convoy’s
failure to bring him to the court, two were adjourned owing to the
applicant’s convoy’s failure to bring him to the court,
two were adjourned owing to the presiding judge’s sickness, and
one each was adjourned owing to prosecutor’s vacation or his
procedural request, the applicant’s studying the case file,
both the presiding judge’s sickness and the applicant’s
convoy’s failure to bring him to the court.
- During the proceedings, the trial court ordered the
police to escort witnesses for the hearings on 14 November 2007, 30
September and 9 November 2009. On the last-mentioned date the
court adopted a separate resolution (окрема
постанова),
finding that the ITT had failed to escort the applicant to the
hearings on a number of occasions. The court also requested the city
police and prosecutors to ensure the applicant’s escort to
hearings. The applicant failed to lodge one of his appeals properly;
it is unspecified how that delayed the proceedings.
B. Medical treatment and assistance provided to the
applicant in detention
- On 28 July 2007 the applicant informed the ITT
that he had an active form of TB and was placed in a special cell.
There is no indication whether the ITT had a medical practitioner on
its staff.
- On
8 February 2008 the TB Centre confirmed the applicant’s
diagnosis and specified that he required a prolonged course of
chemotherapy.
- On 15 May 2008 the applicant was admitted to the TB
ward of the SIZO and was prescribed “H, R, Z, E” (anti-TB
drugs, see paragraph 57 below) and some “vitamins and
hepatoprotectors”.
- On
9 March 2009 the applicant fell down and injured his left knee while
being transported to the ITT. He complained about it to the ITT
administration. A doctor confirmed the injury and recommended,
without specifying the degree of urgency, that the applicant consult
a phthisiatrician.
- When
brought back from the ITT to the SIZO on 12 March 2009, the applicant
was examined by the SIZO doctor, but raised no complaints about his
health. According to a medical certificate of the SIZO doctor of 7
April 2010, "during the examination the applicant did not raise
any complaints as he wished to get to his cell sooner".
- On
18 March 2009 he complained to the SIZO doctor of severe left knee
pain. On 20 March 2009 the doctor performed an X-ray examination and
concluded that the knee cap was broken and displaced. According to
the applicant, the SIZO provided him with no medical treatment in
respect of that injury.
- On
24 March 2009 he was examined by a doctor at the traumatology centre
of Simferopol Town Hospital no. 6 (“the hospital”) and
his knee was immobilised by a plaster cast.
- On
2 April 2009 the applicant complained to the ITT administration about
the injury to his left knee and subsequently was seen by an ambulance
doctor.
- According
to the applicant, on 3 April 2009 the ITT ignored an ambulance
referral for a medical examination of his knee and instead sent him
to the SIZO. There is no indication he was advised such medical
examination at the time.
- On
3 June 2009 an X-ray of the applicant’s left knee revealed a
closed fracture of the left knee cap, with some positive
developments.
- On 3 July 2009 the phthisiatrician of the TB Centre
concluded that the applicant had “infiltrative TB of the upper
part of the left lung (Category 4)”; it was recommended
that he continue medical treatment for one and half month with “H,
R, Z, E”.
- On
7 July 2009 the traumatologist, having examined an X-ray of the
applicant’s knee, found a healed fracture of the left knee cap
and a contracture of the knee. According to him, the applicant did
not need a surgical operation. The applicant was prescribed “a
course of exercise therapy, Fastum Gel, and massage”. On 9 July
2009 the applicant was again seen by the traumatologist, who noted
that he had already been prescribed adequate treatment in respect of
the injury.
- On 15 July 2009 the phthisiatrician found that the
applicant had “infiltrative [TB] of the lungs (Category 4)”
and recommended to continue taking “H, R, Z, E, and
Levofloxacin”. The doctor indicated the appropriate dosage,
frequency and duration for the drugs and also recommended some
“vitamins and hepatoprotectors”.
- On
28 September 2009 a doctor examined the applicant’s left knee
and found no grounds for outpatient treatment or hospitalisation.
- On
4 November 2009 a traumatologist examined the applicant and diagnosed
him with a consolidated fracture of the left knee cap and a
moderately expressed contracture of the left knee joint. He was
prescribed medication and exercise therapy.
- On 2 June and 20 August 2010 the phthisiatrician at
the TB Centre examined the applicant, finding “post-TB residual
changes and fibrosis in the upper part of the lungs (Category 5.1)”.
He recommended that the applicant undergo repeated courses of
anti-relapse therapy, whose particulars were not given. According to
the applicant, the doctor’s conclusions of 2 June 2010 were not
reliable for unspecified reasons.
- On
20 August 2010 the applicant was discharged from the TB ward, which
was unlawful, according to him, because he was still sick.
- On 1 and 21 October 2010 the applicant began a
course of anti relapse therapy. He agreed to take the
medication, yet questioned the effectiveness of the therapy.
- On
2 November 2010 a panel of doctors from the Crimea Medical
Forensics Bureau, having studied the applicant’s medical
records, including the one drawn up by the traumatologist on 26
October 2010, found that the left-knee fracture had healed, that
there were no lasting residual effects of the injury, and concluded
that the knee treatment provided by the Simferopol hospital had been
timely and thorough.
- While
detained at the ITT, the applicant asked for medical assistance on 30
July, 14 and 23 August and 5 September 2007, 9 March, 31 March and 28
September 2009, and 1 April 2010. On each occasion the ITT
administration called the ambulance, whose doctor came to see the
applicant. His chest was X-rayed on 8 February and 15 May 2008,
23 January, 3 June and 10 July 2009, and 3 and 18 February, 2
June and 20 August 2010. The applicant underwent sputum tests on
16, 17 and 19 May, 1 July, 28 November and 1 and 2 December
2008, 23 and 24 January, 24, 25, 26 March, 4 June, 26 and 27
August and 22 September 2009, and 17 February and 20 August 2010, all
of which were negative. On 4 June 2009 he underwent urine and blood
analyses. According to the Government, during his detention in the
SIZO the applicant received a high calorie diet and he was provided
with some additional food. The applicant submitted that his food was
poor and that there was no evidence he received medication and
special food.
- During
his detention the applicant and his representatives lodged a number
of complaints with the police, prosecutors, and courts alleging,
inter alia, that the applicant was not receiving proper
medical treatment. On 9 October 2009 the Sevastopol Prosecutor’s
Office refused to institute criminal proceedings against the ITT duty
officer in that regard. The applicant did not appeal. According to
the Government, after June 2010 the applicant did not complaint about
his state of health. According to the applicant, he complained but
his complaints were not dealt with.
- After
a number of inquiries, on 4 November 2010 the Zaliznychnyi District
Prosecutor’s Office of Simferopol refused to institute criminal
proceedings against the head and the physician of the SIZO medical
unit, the SIZO governor, and the head traumatologist of the
Simferopol hospital. Apparently, the applicant did not appeal against
that decision.
- In
2010 the applicant’s mother instituted court proceedings
against the prosecutors for their negligence in respect of her son’s
TB infection. It appears that the proceedings are pending before an
appellate court.
II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIAL
A. Code of Criminal Procedure
- Article 155 provides:
“Persons in respect of whom taking into custody is
imposed as a preventive measure are kept in places of detention
pending trial, i.e., pre-trial detention centres [SIZOs]. In some
cases, these persons may be kept in places for detained persons [ITT]
... for not more than three days. If transportation of remanded
persons to the pre-trial detention centre ... is impossible within
this time-limit because of the long distance or lack of appropriate
roads, they may be kept in places for detained persons for up to ten
days.”
B. Combating Tuberculosis Act of Ukraine of 5 July 2001
- Section 17 of the Act provides that persons suffering
from tuberculosis who are detained in pre-trial detention centres
(SIZOs) must receive appropriate treatment in the medical units of
these detention centres.
C. Order
of the Ministry of Health of Ukraine no. 384 of 9 June 2006 on
Approval of the Protocol of Medical Assistance for Patients with
Tuberculosis
- According
to the order, there are five main and five sub-categories for the
recording of those who have TB or may be affected by it. For
instance, patients with chronic TB of various localisation, with or
without discharge of bacteria, fall into Category 4. Patients with
residual changes of various localisation after the TB is cured fall
into Category 5.1.
- Under section 6.1, TB
treatment is to be administered in specialised anti-TB institutions
and to consist of two phases: main chemotherapy and rehabilitation.
The main chemotherapy course, an extended, uninterrupted course of
treatment, consists of intensive and supportive treatment stages with
“first-line” anti-tuberculosis antibiotics (isoniazid,
rifampicin, streptomycin, pyrazinamide and ethambutol or “H, R,
S, Z, E”).
- Under section 6.6.1, to obtain maximal results,
medical or surgical treatment of pulmonary TB is to be implemented in
conjunction with individualized hygiene plan and regime (complete bed
rest, part-time bed rest or a training regime). Treatment is to be
followed by rehabilitation, including curative exercise, massage and
physiotherapy.
- According to section 6.6.2., the diet
of a patient with TB infection must take into
account his living and
working conditions, general
state of the organism,
its reactivity,
nature of any
injury, and complications from
other organs.
The diet should be balanced, yet rich in proteins, minerals, and
vitamins, in particular the C, E and B groups. The intake of
carbohydrates should be within the norms, or lower if the patient is
overweight.
- According to section 6.7, pulmonary TB patients of all
categories are to be regularly monitored. For instance, Category 4
patients are to be monitored using the following tests: sputum every
month for six months, then every two months; sensitivity to the
anti-TB drugs and X-ray – at the beginning and once every six
months afterwards. The patients with Category 5.1 TB should undergo
X-ray at least every six months during the first year of monitoring.
- Regular
mandatory examinations to determine the effectiveness of the TB
treatment and timely registration of side effects and their treatment
as set out in Table 15 of the Protocol should be carried out.
- According to the Table 15, if such anti-TB drugs as
isoniazid, rifampin, pyrazinamide, and ethambutol (“H, R, Z,
E”) are administered, examinations and interviews of the
patient, plus biochemical and common blood analysis, should be
undertaken. The patient should also be examined by a neuropathist and
ophthalmologist.
D. Recommendation Rec(2006)2 of the Committee of
Ministers to member states on the European Prison Rules (Adopted by
the Committee of Ministers on 11 January 2006 at the 952nd
meeting of the Ministers’ Deputies)
- The pertinent parts of the Rules read as follows:
“... Scope and application
10.1 The European Prison Rules apply to
persons who have been remanded in custody by a judicial authority or
who have been deprived of their liberty following conviction.
Health care
39. Prison authorities shall safeguard the
health of all prisoners in their care. ...
Organisation of prison health care
...
40.4 Medical services in prison shall seek to
detect and treat physical ... illnesses or defects from which
prisoners may suffer.
40.5 All necessary medical, surgical and
psychiatric services including those available in the community shall
be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of
at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at
all times that a qualified medical practitioner is available without
delay in cases of urgency.
41.3 Where prisons do not have a full-time
medical practitioner, a part-time medical practitioner shall visit
regularly. ...
Duties of the medical practitioner
42.1 The medical practitioner or a qualified
nurse reporting to such a medical practitioner shall see every
prisoner as soon as possible after admission, and shall examine them
unless this is obviously unnecessary. ...
42.3 When examining a prisoner the medical
practitioner or a qualified nurse reporting to such a medical
practitioner shall pay particular attention to: ...
b. diagnosing physical ... illness and
taking all measures necessary for its treatment and for the
continuation of existing medical treatment; ...
f. isolating prisoners suspected of
infectious or contagious conditions for the period of infection and
providing them with proper treatment;
43.1 The medical practitioner shall have the
care of the physical ... health of the prisoners and shall see, under
the conditions and with a frequency consistent with health care
standards in the community, all sick prisoners, all who report
illness or injury and any prisoner to whom attention is specially
directed. ...
Health care provision
46.1 Sick prisoners who require specialist
treatment shall be transferred to specialised institutions or to
civil hospitals, when such treatment is not available in prison.
46.2 Where a prison service has its own
hospital facilities, they shall be adequately staffed and equipped to
provide the prisoners referred to them with appropriate care and
treatment.”
E. World Bank Report on a loan to Ukraine for a
Tuberculosis and HIV/AIDS Control Project (28 December, 2009)
- The pertinent parts of the Report read as follows:
“... Only the prisons setting has seen some
progress in terms of decreased TB prevalence, TB notification rates,
and TB mortality (although combined [Ministry of Health/ Sector
Development Program]’s figures for mortality show an increase
of 13% since 2003). These achievements are a result of progress made
over the last five years to improve nourishment of inmates, increase
drug supply and laboratory reagents, and provide better overall
conditions in prisons (as a result of reductions made in the number
of inmates). Also, severely ill patients have been released from the
prison setting ... However, [Multiple Drug Resistant TB] in prisons
is extremely high, at roughly 20% ... It is evident that since ...
1999, the reported cases of ... TB ... have seen a steady increase
until 2006 with subsequent gradual decline as a result of steps taken
by Government, including to double/quadruple the TB budget in
2006/2007/2008 vis à vis 2003/2004/2005 budgets. However, it
should be noted that TB incidence in Ukraine remains one of the
highest in the ECA region and is five times higher than the EU
average ... The project did expand the laboratory network in the
civil and the prison settings and with additional support from
international and local donors and partners, as well as through
Government own efforts, this network will be further improved.”
F. Other relevant materials
- The
domestic law pertinent to the issue of the lawfulness of the
applicant’s detention is summarised in the judgments in the
cases of Nevmerzhitsky v. Ukraine (no. 54825/00, §§
53-54, ECHR 2005 II (extracts)); Yeloyev v. Ukraine (no.
17283/02, § 35, 6 November 2008); and Gavazhuk v. Ukraine
(no. 17650/02, § 46, 18 February 2010).
- Other
domestic and international material concerning conditions of
detention and treatment of TB infection in detention facilities can
be found in the judgments in the cases of Melnik v. Ukraine
(no. 72286/01, §§ 47-51, 28 March 2006, and Yakovenko
v. Ukraine (no. 15825/06, §§ 53-54, 25 October
2007).
THE LAW
I. SCOPE OF THE CASE
- In his reply to the Government’s observations,
on 11 September 2010 the applicant submitted new complaints
under Article 3 of the Convention, alleging in particular that on 26
September 2007 the ITT staff had beaten him up with no effective
investigation into the circumstances of the beating ensuing, and that
the living conditions of his detention in and transportation between
the SIZO and ITT had been poor. He further complained of an
ineffective investigation into his complaints about inadequate
medical treatment in detention. Additionally, on 7 February and
24 May 2011 he complained about inadequate medical treatment of
his medical conditions at present. The Court notes that these new
complaints are not an elaboration of the applicant’s original
complaints on which the parties have commented. The Court considers,
therefore, that it is not appropriate to take these matters up
separately now (see Vitruk v. Ukraine, no. 26127/03, §
49, 16 September 2010). The new complaints will be dealt with under
application no. 52233/11.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that his detention had been contrary to
Article 3 of the Convention, given his poor state of health. He
also complained under the same provision that the authorities had
failed to provide him with adequate medical treatment during his
detention.
Article
3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The Government submitted that the applicant had not
appealed against the decision refusing criminal prosecution of the
ITT officials, and an inquiry in respect of the SIZO staff and the
head traumatologist of the Simferopol hospital was pending.
Accordingly, he could not claim to be a victim of violations of his
rights under Article 3 of the Convention.
- The
applicant pointed out that he had in fact appealed against the
decisions in respect of the SIZO officials and the Simferopol
hospital.
- The
Court notes that it has already examined similar objections by the
Government in a number of cases and found that the problems arising
from the lack of proper medical treatment in Ukrainian places of
detention were of a structural nature (see Visloguzov v. Ukraine,
no. 32362/02, § 64, 20 May 2010 and Petukhov v. Ukraine,
no. 43374/02, § 74-78,
21 October 2010). The Court sees no reason in the present case
to depart from those findings and therefore considers that this
complaint cannot be rejected for failure to exhaust domestic
remedies. It therefore holds that the applicant complied with the
rule of exhaustion of domestic remedies.
- 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.
B. Merits
1. General principles
- The
Court has emphasised on a number of occasions that the health of
prisoners has to be adequately secured (see Kudła
v. Poland [GC], no. 30210/96, §
94, ECHR 2000 XI). A lack of appropriate medical care may
amount to treatment contrary to Article 3 (see İlhan v.
Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII, and
Sarban v. Moldova, no. 3456/05, § 90, 4 October
2005). Where a prisoner returns from hospital with a known history of
medical ailments, the authorities are under an obligation to ensure
appropriate follow-up care independent of the initiative being taken
by the prisoner (see Tarariyeva v. Russia, no. 4353/03, §
80, ECHR 2006 XV (extracts)).
69. In assessing whether the
authorities discharged their health-care obligations vis-à-vis
a detainee in their charge, the Court may also analyse to what
extent his state of health deteriorated in the course of his
detention. Although such deterioration does not in itself imply a
violation of Article 3, it may, however, be considered to be a
characteristic element of the overall conditions of detention (see,
for example, Valašinas v. Lithuania, no. 44558/98,
§ 54, ECHR 2001 VIII, and Farbtuhs v. Latvia, no.
4672/02, § 57, 2 December 2004).
- The
Court has also held that Article 3 of the Convention cannot be
interpreted as securing to every detained person medical assistance
of the same level as “in the best civilian clinics” (see
Mirilashivili v. Russia (dec.), no. 6293/04, 10 July
2007). It further held that it was “prepared to accept that in
principle the resources of medical facilities within the penitentiary
system are limited compared to those of civil[ian] clinics”
(see Grishin v. Russia, no. 30983/02, § 76, 15
November 2007). 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, § 140, 22 December 2008).
- The other relevant principles determined by the Court
in its case-law as regards Article 3 of the Convention in respect of
medical treatment in detention are summarised in the case of Ukhan
v. Ukraine (no. 30628/02, § 74,
18 December 2008).
- The
Court attaches particular importance to the seriousness of the fact
that the applicant was suffering from TB, given the poor medical
assistance and protection from that disease in Ukrainian detention
facilities evidenced by the Court’s findings in similar cases
against Ukraine (see, for instance, Yakovenko, cited above, §§
97-102, and Pokhlebin v. Ukraine, no. 35581/06, §§
63-68, 20 May 2010) and relevant international reports and material
concerning the treatment of tuberculosis in Ukraine (see Melnik,
cited above, §§ 47-53, and Yakovenko, cited above,
§§ 53-55, 62, and 63). Even if there have been a number of
improvements recently reported in respect of the treatment of TB in
Ukrainian prisons, the Court must note concerns about Multiple Drug
Resistant TB in prisons and the fact that Ukraine still has one of
the highest TB incidences in Europe (see paragraph 59 above).
- The
Court’s task in such cases is therefore to assess the quality
of the medical services available to applicants and, if they have
been deprived of adequate medical assistance, to ascertain whether
this amounted to inhuman and degrading treatment contrary to Article
3 of the Convention (see Sarban, cited above, § 78, and
Yevgeniy Alekseyenko v. Russia, no. 41833/04,
§ 104, 27 January 2011).
- The
Court will examine separately the medical assistance provided to the
applicant in respect of the knee injury and the TB infection during
his detention. The latter will also be considered in respect of two
separate periods – before 15 May 2008, when he was held in the
ITT, and between 15 May 2008 and 21 October 2010, the last date
of known medical treatment.
2. Medical assistance in respect of the knee injury
(a) Submissions of the parties
- The
Government maintained that from the applicant’s first complaint
the authorities had been quick to react and had provided him with the
appropriate care. Furthermore, the applicant had been periodically
examined and treated accordingly. In general, the Government
considered that the applicant had been provided with adequate medical
treatment.
- The
applicant challenged the soundness of the diagnosis and the
recommendations made by the ambulance doctor who had seen him on
9 March 2009. He complained of a lack of treatment for his knee
over the period 9-24 March 2009 and that his medical treatment on
24 March 2009 had been insufficient as the plaster cast should
have covered the entire leg. On 3 April 2009 the ITT had ignored an
ambulance referral for a medical examination. As a result, he had
deformation and contracture of his left knee joint which had not been
operated on at all. Additionally, he had had no possibility to follow
a course of exercise therapy and massage while detained. Finally, the
conclusions of the examination of 2 November 2010 had been unreliable
since they had not met the requirements for criminal procedures and
the examination had been carried out in his absence.
(b) The Court’s assessment
- First,
the Court notes that the applicant did not dispute that his
complaints about the medical condition were recorded and acted upon
by the administration of the ITT and the SIZO. All his complaints
were communicated to the medical personnel of the SIZO and then/or to
the ambulance service which dealt with them themselves or referred
the applicant to the relevant specialist institution or medical
practitioner.
- In respect of the applicant’s complaints about
the lack of surgery and allegedly poor quality of the treatment he
received on 9 and 24 March 2009, the Court is not in a position to
decide whether the choice of treatment appropriately reflected the
applicant’s needs or whether he could have obtained better
treatment from other health-care providers. As far as the quality of
the diagnosis of 9 March 2009 is concerned, the Court notes that the
diagnosis was indeed not precise. However, the doctor referred the
applicant to another physician. A few days later the applicant was
seen by the SIZO doctor, yet did not request to have his diagnosis
clarified, nor did he complain about his injury. When he complained
about the injury on 18 March 2009, he was X-rayed within two
days and a fracture was diagnosed. Hence no fault lies with the
authorities for the imprecise diagnosis, taking into account that the
applicant did not address this issue when was brought back to the
SIZO, in the absence of any indication that it was manifestly
negligent and not acted upon in good time.
- As
regards the alleged lack of knee treatment between 9 and 24 March
2009 and the lack of a referral for a medical examination on 3 April
2009, the Court finds that no such treatment or referral was advised
by the doctors. While the applicant argued that this medical
condition had become worse with time, the doctors’ conclusions
of 2 November 2010 indicated the opposite. The Court discerns no
ground to doubt the validity of these conclusions, since no
alternative medical advice indicated otherwise nor did the applicant
adduce any evidence that there was reason to doubt the doctors’
credentials or credibility. Overall, the Court discerns no
unjustified delays or other deficiencies in providing the applicant
with appropriate medical advice and treatment in respect of this
health condition. Nothing suggests that his knee injury was in
principle incompatible with his detention either.
- The
Court is of the opinion that the authorities undertook sufficient
measures in respect of the applicant’s knee injury hence
complying with the requirements of Article 3 of the Convention.
Accordingly, there has been no violation of Article 3 of the
Convention in this respect.
3. Medical assistance in respect of the TB infection
(a) Submissions of the parties
- The
Government maintained that the applicant had been kept in the ITT in
accordance with the medical advice. Later on, in the SIZO, he had
been placed in the medical unit’s TB ward and registered for
dispensary observation. He had been examined by the SIZO doctors
periodically. He had undergone the necessary check-ups, had received
adequate medical treatment and had been put on a high calorie diet.
The findings made by the phthisiatrician on 2 June 2010 had
illustrated the effectiveness of the medical treatment received by
the applicant in the SIZO medical unit. Overall, there had been no
medical conclusions indicating that the applicant’s medical
treatment in connection with his TB was only possible on an
in-patient basis in a specialised medical institution. Therefore, the
Government contended that there had been no violation of the
applicant’s right to adequate medical treatment in connection
with his tuberculosis.
- The
applicant submitted that he had had no opportunity to have his
medical conditions treated. In particular, his TB had been treated
inappropriately, causing him suffering and anxiety. As a sign of the
worsening of this medical condition, he had had episodes of coughing
up blood in 2009. The doctor’s conclusions of 2 June 2010 had
not been reliable for unspecified reasons and his subsequent transfer
to a cell designated for healthy inmates had been unlawful. The
Government did not provide the Court with any document with his
signature attesting that he had received appropriate medical
treatment and special food.
- Overall,
even though the administration of the ITT and SIZO had recorded his
complaints about his state of health, he had not been provided with
any effective aid or treatment since the doctors that had been
consulted had given him only painkillers.
(b) The Court’s assessment
(i) Medical assistance between 28 July
2007 and 15 May 2008
- The Court notes that before his detention the
applicant had been receiving a course of anti-TB treatment at a
specialised medical institution, which was interrupted once he was
detained. The investigative authorities, by interrupting his
treatment had therefore to follow up his health condition especially
closely from 28 July 2007, the date they become aware of the
applicant’s TB infection, rather than 1 August 2007, when his
health condition was confirmed (see paragraphs 11 and 26 above).
- Before
turning to the particulars of the medical assistance, the Court
points out that the administration of the ITT complied with the
doctor’s recommendation and held the applicant in cells
designated for those suffering from TB. However, even if the ITT
called an ambulance to the applicant whenever the need arose, the
fact that there was no medical practitioner on the ITT staff is
relevant and important. For instance, according to the domestic law
(see paragraph 49 above), the applicant, after no more than ten days
of detention in the ITT, should have been transferred to the SIZO.
Thus, had the authorities complied with the regulations, the
applicant would have been transferred to the SIZO no later than 16
August 2007, where he could have expected to receive treatment in the
medical unit (see paragraph 50 above). His transfer took place,
however, only on 15 May 2008, so nine months late. In the absence of
any justification or explanation for this situation, the Court finds
that the domestic procedure for medical assistance to the applicant,
who was suffering from TB infection in detention, was not followed
properly.
- As
regards the specifics of the medical assistance in the ITT, the Court
notes that despite a number of consultations provided by ambulance,
only on 8 February 2008, that is, after about six months spent in
detention, the applicant underwent a chest X-ray and saw a
specialist. Furthermore, at no time during his stay in the ITT he was
medically examined, contrary to the relevant regulations (see
paragraph 55 above).
- As
to the anti-TB treatment which should have been provided (see
paragraph 52 above), there is nothing to indicate what treatment, if
any, the applicant received before 8 February 2008. Moreover, after
that date, when the TB Centre expressly indicated that he required a
prolonged course of chemotherapy, there is no indication that the
applicant was provided with treatment or monitored by a medical
practitioner.
- Furthermore,
if the domestic requirement to treat TB in specialised institutions
is taken into account, together with what the European Prison Rules
applicable to the applicant’s situation (see paragraph 58
above) entail, and the fact that the applicant was held in an
ill-equipped detention facility without any anti-TB treatment, the
Court also concludes that such conditions of the applicant’s
detention were incompatible with his health condition during this
period.
(ii) Medical assistance between 15 May
2008 and 21 October 2010
- The
Court observes that on and after 15 May 2008 the authorities
appeared to be establishing the extent of the applicant’s
health condition and prescribing the necessary treatment. For
instance, when placed in the SIZO, he was admitted to a TB ward,
X-rayed and prescribed medicine. Moreover, he was four times examined
by a phthisiatrician and underwent various tests in monitoring his
TB. The applicant was also administered a number of medicines. As of
21 October 2010 he was undergoing anti-relapse therapy.
- The
applicant maintains that the only treatment he received was
consultations and painkillers, and that the food was poor. He did not
specify when he in 2009 coughed up blood, or provide particulars or
any documents in support of this. At the same time, the Court finds
no reason to doubt the validity of the doctor’s conclusion of 2
June 2010, since no alternative medical advice indicated otherwise,
nor did the applicant adduce any evidence that there was reason to
doubt the doctors’ credentials or credibility. The ensuing
actions of the authorities do not therefore appear to have
contradicted any medical advice or related regulations.
- Yet
the applicant’s allegations of inadequate medical assistance
before this Court, and those raised in the domestic proceedings, had
a number of valid grounds. In particular, the applicant was diagnosed
initially as having TB of the left lung, while on and after 15 July
2009 his condition affected both lungs. The Court further observes
that there was no specific mentioning of the applicant’s TB
category before 3 July 2009, which was significant for determining
the necessary assistance (see paragraph 55 above). This in itself is
sufficient to conclude that the medical assistance before 3 July 2009
was not comprehensive. Furthermore, the doctor occasionally did not
indicate the names, dosage or duration of administration of the all
medicine prescribed or did not indicate specifics of the therapy (see
paragraphs 28, 38 and 41 above). Moreover, between 3 July 2009 and 21
October 2010 (see paragraphs 36-49) not all of the required tests,
analyses and examinations were carried out regularly or at all
contrary to the domestic procedures (see paragraphs 55 and 57 above).
- The
Court notes that during the whole period under examination, no
medical advice indicated what individualized hygiene plan and regime
the applicant should follow, again contrary to the legal requirements
(see paragraph 53 above). Nor was it demonstrated by the authorities
what regime the applicant was provided with in the absence of proper
advice. Likewise, there are no submissions containing the doctor’s
advice in respect of the applicant’s diet, except those with
prescriptions for vitamins, which still lack particulars.
Furthermore, the applicant alleged that there was no evidence
attesting that he had received special food. The Court notes that the
Government indeed submitted no such evidence, nor did they specify
what food he was given or when. The fact that the applicant was given
a high-calorie diet, in the absence of relevant medical advice,
appears not to be in compliance with the protocol (see paragraph 54
above).
- In
respect of the applicant’s allegation that he should not have
been held in detention owing to his health condition, the Court
observes that he was treated in a TB ward before 20 August 2010 and
his anti-TB treatment achieved some eventual improvements (see
paragraphs 28 and 41-43 above). The Court cannot therefore conclude
that the applicant’s health condition was incompatible with his
detention during this period of time.
- Nevertheless,
even if there were positive effects associated with the applicant’s
treatment, the Court finds that the deterioration of his health as
found on 15 July 2009 coupled with failures to ensure that a
comprehensive record of his state of health and the treatment he
underwent was kept, that medical supervision was
regular, systematic and involving a comprehensive therapeutic
strategy aimed at curing his diseases or preventing its aggravation,
and that the necessary conditions were created for the prescribed
treatment to be actually followed through were incompatible with the
authorities’ obligations under Article 3 of the Convention
during this period of the applicant’s detention.
(c) Conclusion of the Court
- The Court finds that the failure to provide the
applicant with the appropriate medical assistance in respect of his
TB infection between 28 July 2007 and 21 October 2010 amounted
to treatment prohibited by Article 3 of the Convention.
There has accordingly been a violation of Article 3 of the Convention
in this respect.
III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
A. Lawfulness of the applicant’s detention
(Article 5 § 1 (c) of the Convention)
- The
applicant complained under Article 5 § 1 (c) of the Convention
that his detention had been unlawful. The relevant provision of
Article 5 of the Convention read as follows:
“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;
1. Admissibility
- The
Government submitted that this complaint in respect of the
applicant’s detention from 27 to 28 July 2007 was inadmissible
for non-exhaustion of domestic remedies, or, alternatively, as lodged
out of the six-month time-limit.
- The
applicant contended that he had complained about that period of his
detention before the domestic authorities, but they had failed to
address the complaint.
- The
parties submitted no observations on admissibility of the complaint
in respect of the other periods of his detention.
- The
Court recalls that the requirement of exhaustion of domestic remedies
is intended to provide national authorities with the opportunity of
remedying violations alleged by an applicant (see, inter alia,
López Ostra v. Spain, judgment of 9 December 1994,
Series A no. 303-C, p. 52, § 38; Tomé Mota v.
Portugal (dec.), no. 32082/96, ECHR 1999-IX). While
recognising the principle that an applicant is excused from pursuing
domestic remedies which are bound to fail, the Court nevertheless
finds that in such cases an applicant has to show either by providing
relevant court decisions or by presenting other suitable evidence
that a remedy available to him would in fact have been of no avail.
The Court further observes that the existence of mere doubt as to the
chances of success of a domestic remedy does not exempt an applicant
from the obligation to exhaust it (see, inter alia,
Allaoui and Others v. Germany (dec.), no.
44911/98, 19 January 1999 or Tomé Mota, cited above).
- The
Court reiterates that a person convicted at first instance cannot be
regarded as being detained “for the purpose of bringing him
before the competent legal authority on reasonable suspicion of
having committed an offence”, but is in the position provided
for by Article 5 § 1 (a) of the Convention, which authorises
deprivation of liberty “after conviction by a competent court”
(see Kudła v. Poland [GC], cited above, § 104).
- The
Court notes that according to the applicant, he complained about
unlawfulness of his detention from 27 to 28 July 2007 before the
domestic authorities twice (see paragraphs 13 and 16 above). However,
there is no evidence that the authorities received those complaints.
There is no indication that the applicant availed himself of domestic
remedies on other occasions either. Nor did he demonstrate that he
was excused from pursuing domestic remedies. Accordingly, he cannot
be regarded as having exhausted domestic remedies in this respect.
- Furthermore,
from 24 October to 23 December 2008 and from 6 April 2010
onwards the applicant was held in custody after having been convicted
by the first-instance court, a fact not disputed by the applicant.
Hence, his detention during this period was not incompatible with the
Convention.
- It
follows that this part of the application must be dismissed pursuant
to Article 35 §§ 1, 3 (a) and 4 of the Convention.
- As
regards the applicant’s detention from 6 October 2007 to
24 October 2008 and from 23 December 2008 to 6 April 2010, the
Court notes that this part of the application 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. Merits
- The
Government did not specify what decision authorised the applicant’s
detention from 6 October 2007 to 24 October 2008, maintaining that
during that period and between 23 December and 6 April 2010 the
applicant was detained on the basis of a reasonable suspicion of
having committed a criminal offence.
- The
applicant maintained that his detention from 6 October 2007 to 24
October 2008 and from 23 December 2008 to 6 April 2010 had been
unlawful.
- The
Court notes that the District Court’s decision of 6 August 2007
contained no reference to the authorised period of detention and was
appealed against by the applicant. According to Article 115 of the
CCP, and in the absence of any extension of the detention, the latter
should have lasted less than two months, that is no longer than until
6 October 2007. Even supposing that the maximum period of detention
was authorised on 6 August 2007, there was no decision that in
any way allowed the deprivation of the applicant’s liberty from
6 October 2007 to the date of the first hearing in the case.
Furthermore, and regardless of the exact date of the first court
hearing in those proceedings, the Court finds no court order to have
been issued then or at any time later leading up to 24 October 2008,
when the applicant was convicted.
- The
Court further observes that on 23 December 2008 the Court of Appeal,
having quashed the applicant’s conviction, ordered his retrial
and further detention, yet provided no reasons and indicated no
time-limit for his detention.
- The
Court has previously examined similar situations in other cases
against Ukraine and found them to be incompatible with the
requirements of lawfulness under Article 5 § 1 of the
Convention. In particular, there were instances when continued
detention before or during trial were not covered by any
judicial decision (see, for example, Yeloyev, cited above, §§
48-51; Solovey and Zozulya v. Ukraine, nos. 40774/02
and 4048/03, §§ 70-73, 27 November 2008; Nikolay
Kucherenko v. Ukraine, no. 16447/04,
§§ 37 38, 19 February 2009; and Doronin
v. Ukraine, no. 16505/02, §
58, 19 February 2009). There have also been instances of failure of
the judicial authorities to give reasons for their decisions
authorising detention or to fix a time-limit for such detention (see
Yeloyev, cited above, §§ 52-55, and Doronin,
cited above, § 59). Moreover, in the judgment of Kharchenko
v. Ukraine (no. 40107/02, §§ 98
and 101, 10 February 2011), the Court held that such a
situation, where there are periods of detention not covered by
any court order, or where the court orders made during the trial
stage fix no time-limits for further detention, is
a recurrent structural problem in Ukraine.
There are no arguments in this case capable of persuading the
Court to reach a different conclusion.
- Taking
into consideration all the above-mentioned circumstances, the Court
concludes that the applicant’s detention from 6 October 2007 to
24 October 2008 and from 23 December 2008 to 6 April 2010 was
unlawful.
- There
has accordingly been a violation of Article 5 § 1 of the
Convention in this respect.
B. Complaint under Article 5 § 3 of the Convention
The
applicant further complained that that the overall length of his
detention had not been justified. He referred to Article 5 § 3
of the Convention, which provides in so far as relevant as follows:
“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.”
1. Admissibility
- The
Government did not submit any comments on the admissibility of this
complaint.
- 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. Merits
- The
Government reiterated that there had been sufficient grounds for the
applicant’s detention and that the authorities had been
diligent in dealing with his case.
- The
applicant maintained that his detention had been unnecessarily
lengthy.
- The
Court reiterates that the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. This must be
assessed in each case according to its special features, the reasons
given in the domestic decisions, and the matters referred to by the
applicant in his applications for release. Continued detention can be
justified in a given case only if there are specific indications of a
genuine requirement of public interest which, notwithstanding the
presumption of innocence, outweighs the rule of respect for
individual liberty. In determining the length of detention pending
trial under Article 5 § 3 of the Convention, the period to be
taken into consideration begins on the day the accused is taken into
custody and ends on the day when the charge is determined, even if
only by a court of first instance (see, among others, Labita v.
Italy [GC], no. 26772/95, §§ 145, 147 and 153, ECHR
2000 IV). The question whether or not the Court can look into
complaints referring to a period which taken separately falls outside
the six-month time-limit depends on the nature of the complaints and
the type of violation alleged. Given that detention on remand is a
continuous situation, the Court has on many occasions decided that
where an accused person is detained for two or more separate periods
pending trial, the reasonable-time guarantee of Article 5 § 3
requires a global assessment of the aggregate period (see Solovey
and Zozulya, cited above, § 56, with further references).
- The
Court notes that it is not disputed by the parties that the applicant
was arrested on 27 July 2007. On 6 April 2010 he was convicted by a a
first-instance court for the second time and that conviction has
remained in force. Thus the period to be taken into account commenced
on 27 July 2007 and ended on 6 April 2010 and excluded the period of
detention from 24 October to 23 December 2008, when the applicant was
convicted for the first time. Accordingly the period at issue lasted
for about two and a half years.
- The
Court observes that the seriousness of the charges against the
applicant and the implicitly stated risk of his committing further
crime were cited in the initial detention order. Thereafter, the
courts did not advance any grounds whatsoever for maintaining the
applicant’s detention, even if there is no evidence that the
applicant’s request for release on medical grounds was ever
lodged. However, Article 5 § 3 requires that after a
certain lapse of time the persistence of a reasonable suspicion does
not in itself justify deprivation of liberty, and the judicial
authorities should give other grounds for continued detention. Those
grounds, moreover, should be expressly mentioned by the domestic
courts (see Yeloyev, cited above, § 60). No such reasons
were given by the courts in the present case. Furthermore, at no
stage did the domestic authorities consider any other preventive
measures as an alternative to detention.
- In
this context, the Court notes that it has frequently found a
violation of Article 5 § 3 of the Convention in cases raising
issues similar to those in the present case (see, for example,
Tkachev v. Ukraine, no. 39458/02, §§ 47 53,
13 December 2007; Yeloyev, cited above, §§ 60 and
61; Doronin, cited above, §§ 63-64; Sergey
Volosyuk v. Ukraine, no. 1291/03,
§§ 40-42, 12 March 2009; and Molodorych v.
Ukraine, no. 2161/02, §§ 81-83,
28 October 2010). Moreover, in the judgment of Kharchenko
v. Ukraine (cited above, §§ 99 and
101), the Court held that the tendency of the Ukrainian courts to
repeatedly refer to the same set of grounds, if any, for lengthy
periods of detention is a recurrent problem
of a structural nature. There are no arguments in this case
capable of persuading the Court to reach a different conclusion.
- Accordingly,
the Court concludes that there has been a violation of Article 5 §
3 of the Convention.
IV. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS AGAINST
THE APPLICANT
- The
applicant further complained that the proceedings against him had
been unreasonably long and that he had had no effective domestic
remedy in respect of his length complaint. He relied on Articles 6 §
1 and 13 of the Convention, which read, in so far as relevant, as
follows:
Article 6 § 1
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested these arguments and maintained that the
proceedings had been conducted without unreasonable delays
attributable to the authorities.
- The
applicant maintained his complaint.
- The
period to be taken into consideration began on 27 July 2007, when the
applicant was detained, thus becoming substantially affected by the
authorities’ actions taken as a result of a suspicion against
him. The period ended on 25 January 2011, when he received a copy of
the final decision in his case. It thus lasted about three and a half
years for two levels of jurisdiction.
- The
Court reiterates that, in assessing the reasonableness of the length
of the proceedings in question, it is necessary to have regard to the
particular circumstances of the case and the criteria laid down in
the Court’s case-law, in particular the complexity of the case
and the conduct of the applicants and of the relevant authorities,
and what was at stake for the applicants (see, for instance, Kudła
v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).
-
The Court notes that the applicant was in custody during the whole of
the proceedings which cannot be considered particularly complex (see
paragraph 23 above). It discerns no periods of substantial inactivity
attributable to the applicant (see paragraphs 24 and 25 above).
- Having
regard to the conduct of the authorities, the Court notes that four
of the hearings were adjourned for unknown reasons, which is not
acceptable given the authorities’ duty to keep good records of
the proceedings. Neither is it acceptable that five hearings were
adjourned owing to the authorities’ failure to transport the
applicant from the detention facility to the trial court. On the
other hand the Court notes the trial court’s effort to speed up
the proceedings when on three occasions it ordered the witnesses to
be escorted to the hearings and it also drew the attention of the law
enforcers to the need to ensure the applicant’s presence at the
hearings.
- Regard
being had to all the circumstances, the Court concludes that in the
present case the overall length of the proceedings was not excessive
and cannot be considered unreasonable (see, for example, Shavrov
v. Ukraine (dec.), no. 11098/03, 11 March 2008, and
Kharchenko, cited above, §§ 93-95).
- It
follows that this complaint under Article 6 § 1 is manifestly
ill-founded. In the absence of any arguable claim under Article 6 of
the Convention, the Court is not required to consider whether there
were effective domestic remedies, as required by Article 13, for the
above complaints. It follows that this part of the application must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant alleged under Article 3 of the Convention that he had
been subjected to psychological pressure by the police with the aim
of extracting a confession. Under Article 5 of the Convention he
complained about unlawfulness of his detention from 28 July to 6
October 2007. He also complained under Article 6 §§ 1 and 3
(a), (b), and (c) of the Convention that the proceedings had been
unfair, alleging in particular that the authorities had violated his
right to defence. Finally, the applicant complained of a violation of
Article 14 of the Convention, stating that he had been discriminated
against by the authorities in the course of the criminal proceedings
against him.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that 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 (a) and 4 of the
Convention.
VI. 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, costs and expenses
- The
applicant repeatedly requested the Court to ensure that he received
adequate medical treatment in respect of his TB infection. He also
stated his intention to lodge a claim in respect of pecuniary damage
originating in his loss of disability payments in a separate
application. He claimed 250,000 euros (EUR) in respect of
non-pecuniary damage. He did not submit a claim in respect of costs
and expenses.
- The
Government contested the claims.
- Since
the Court did not consider the adequacy of the applicant’s
medical treatment at present, as this matter is outside of the scope
of the present application (see paragraph 62 above), it is not in
position to entertain related requests under Article 41 of the
Convention. On the other hand, it considers that the applicant has
suffered anguish on account of the violations found. Making its
assessment on an equitable basis and having regard to the particular
circumstances of the case, the Court awards the applicant EUR 10,000
in respect of non-pecuniary damage.
- In
view of the applicant’s submitting no claim for pecuniary
damage, or costs and expenses, the Court awards him no compensation
in that regard.
B. 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
- Declares unanimously admissible the complaints
under Article 3, Article 5 §§ 1 (c) (unlawfulness of
detention from 6 October 2007 to 24 October 2008 and from 23
December 2008 to 6 April 2010) and 3 (length of detention from 27
July 2007 to 24 October 2008 and from 23 December 2008 to 6
April 2010) of the Convention admissible and the remainder of the
application inadmissible;
- Holds by five votes to two that there has been
no violation of Article 3 of the Convention on account of a lack of
adequate medical assistance in detention in respect of the knee
injury;
- Holds unanimously that there has been a
violation of Article 3 of the Convention on account of a lack of
adequate medical assistance in detention in respect of the
tuberculosis infection;
- Holds unanimously that there has been a
violation of Article 5 § 1 (c) of the Convention;
- Holds unanimously that there has been a
violation of Article 5 § 3 of the Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Ukrainian hryvnias at the
rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the
remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 15 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) concurring
opinion of Judge Nußberger;
(b) partly
dissenting opinion of Judge Yudkivska joined by Judge Spielmann.
D.S.
C.W.
CONCURRING OPINION OF JUDGE NUSSBERGER
I
agree with the majority that there has been a violation of Article 3
of the Convention on account of the lack of adequate assistance in
detention in respect of the applicant’s infection. It is
absolutely unacceptable that a detainee with an active form of TB
should be placed in a special cell but not given any treatment at
all. That is what happened to the applicant between 28 July 2007 and
15 May 2008, that is, for more than nine months. Although the TB
Centre confirmed the applicant’s diagnosis and specified that
he required a prolonged course of chemotherapy, nothing was done.
However, on 15 May 2008 the situation changed. The applicant was
admitted to the TB ward, where he received continuous treatment and
had the relevant medicines administered to him. It is beyond dispute
that his health improved. Admittedly, even during this period of time
the treatment was not perfect. The TB category was not mentioned,
there was no individualised hygiene plan, the prison diet was not
tailored to the applicant’s needs and the medical assistance
was still not comprehensive (see paragraph 91). Nevertheless, it has
to be acknowledged that there was a huge difference between the
period before 15 May 2008 and afterwards. Even though the treatment
during the second period was far from perfect, I do not believe it
reached the threshold required for a violation of Article 3 of the
Convention. Therefore, I would have preferred the Chamber to take a
more differentiated approach.
PARTLY DISSENTING OPINION OF JUDGE YUDKIVSKA JOINED BY
JUDGE SPIELMANN
To my
regret, I cannot share the opinion of the majority that there was has
been no violation of Article 3 concerning the applicant’s knee
injury.
I
note that the applicant still had full mobility when he was arrested
in 2007, but that, according to the medical report of November 2009,
he had “a consolidated fracture of the left knee cap and a
moderately expressed contracture of the left knee joint” (see
paragraph 40). This implies limitation of the knee’s
flexibility, hindering the applicant’s movements.
It
follows from the Court’s case-law that a deterioration in a
person’s state of health in a detention facility inevitably
raises doubts as to the adequacy of the medical treatment there (see
Khudobin v. Russia,
no. 59696/00, § 84, ECHR 2006-XII (extracts)). Thus it was
up to the authorities to provide a plausible and convincing
explanation for the applicant’s mobility problem.
In
the present case I observe that the applicant sustained his knee
injury after falling down while being transported to the ITT. He
complained immediately to an ITT doctor (see paragraph 29), who
confirmed the injury but recommended that he consult a phtisiatrician
– a tuberculosis specialist – although it was clear that
the applicant needed to consult a trauma specialist who could assess
the condition of his knee and treat it. Although for any broken bone
medical assistance during the first few days appears to be crucial,
the applicant did not receive any further help and was transferred
back to the SIZO three days later, on 12 March, with a still broken
and untreated knee cap.
The majority criticises the applicant for his failure to complain
again on his arrival at the SIZO, or to insist on clarification of
his diagnosis (see paragraph 78). I notice, however, that according
to the medical certificate issued by the SIZO doctor, the applicant
did not raise any complaint as he “wished to get to his cell
sooner” (see paragraph 30). It is important to mention that
transfer from the ITT to the SIZO could take up to two days in quite
appalling conditions (see in this regard the Court’s findings
in the cases of Yakovenko v.
Ukraine,
no. 15825/06,
§§ 105-113, 25
October 2007, and Koktysh
v. Ukraine, no.
43707/07, §§
107-108, 10 December 2009,
concerning the conditions of transportation between the same ITT and
SIZO as in the instant case); and for a person with a
fractured knee, which causes unbearable pain, such a trip is
exhausting. Hence, I do not consider that he could be reproached for
his desire to get to his cell immediately and to rest after a
gruelling journey.
The
fact remains that the authorities knew about the applicant’s
knee problem as of 9 March, and I fail to see any practical obstacles
to its immediate treatment in order to avoid negative consequences.
Instead, this problem was first addressed on 24 March, about two
weeks after the injury occurred. Although the knee fracture had
healed per se, it appears from the documents submitted that
the knee remained deformed.
In
the absence of any evaluation of the causes of this deformity, the
most plausible explanation would appear to be that the applicant
was not afforded appropriate medical treatment for the contracture. I
therefore cannot conclude that the authorities undertook sufficient
measures to ensure that the applicant was not subjected to treatment
contrary to Article 3 of the Convention.
