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FIFTH SECTION

Application no. 12258/09
Aleksandr Viktorovich IVANOV
against Ukraine
lodged on 20 February 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Aleksandr Viktorovich Ivanov, is a Ukrainian national who was born in 1956 and currently serves a prison sentence in Zhytomyr.

A.  The circumstances of the case

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

On 17 March 1996 the applicant was arrested on suspicion of having committed a murder and other crimes and placed in Odessa pre-trial detention centre (SIZO no. 1).

On 28 March 1996 the applicant was found to be HIV-positive. According to the applicant, no medical treatment was provided to him.

On 19 February 1997 the Odessa Regional Court convicted the applicant of aggravated murder and other crimes, and sentenced him to the death penalty.

On 10 July 1997 the Supreme Court of Ukraine upheld that judgment and it became final.

On 11 September 1997 the Convention entered into force with respect to Ukraine and the applicant’s death sentence was never executed. Following a declaration that the death penalty was unconstitutional by a decision of the Constitutional Court of Ukraine in December 1999 and amendments to the Criminal Code in February 2000, on 4 October 2000 the Odessa Regional Court commuted the applicant’s death sentence to life imprisonment. Since that date the applicant has unsuccessfully attempted to have his sentence re-examined and commuted to one of fixed-term imprisonment.

On 29 May 1999 the applicant was transferred to Zhytomyr Prison no. 8, which had been informed by staff from SIZO no. 1 that the applicant was not suffering from any diseases. Notwithstanding the applicant’s protests and requests for clarification, no re-evaluation as regards his HIV-status was made available to him until 2005.

In 2005 the applicant’s positive HIV-status was confirmed; however, no treatment was provided to him.

Following the applicant’s further complaints about the deterioration in his health, nausea and stomach-ache, in December 2007 he was examined for digestive diseases and found to be suffering from hepatitis C.

On 3 March 2009 the applicant was prescribed anti-retroviral therapy.

On an unspecified date the applicant requested the Bogunsky District Court of Zhytomyr to release him from prison on medical grounds.

On 7 October 2009 the applicant was examined by a medical commission and diagnosed with the second clinical stage of HIV, chronic hepatitis, chronic gastritis, cholecystitis, ischemic heart disease and second-degree hypertension. The commission concluded that, notwithstanding the above, the applicant was fit for detention.

On 23 November 2009 the Bogunsky District Court of Zhytomyr rejected the applicant’s request to be released on medical grounds, referring, in particular, to the medical commission’s conclusion and the prison doctor’s statements that he had been under regular supervision by the prison medical staff.

The applicant appealed, complaining, inter alia, that he had received no treatment for hepatitis and that his state of health was worsening.

On 26 January 2010 the Zhytomyr Regional Court of Appeal dismissed his appeal.

According to the applicant, notwithstanding his numerous complaints to various authorities, he has not been receiving any treatment besides the anti-retroviral therapy and, owing to the lack of a specialist in infectious diseases in prison, the monitoring of his HIV condition has been irregular.

B.  Relevant domestic law and international materials

Relevant domestic and international materials can be found in the Court’s judgments in the cases of Melnik v. Ukraine (no. 72286/01, §§ 47-53, 28 March 2006); Yakovenko v. Ukraine (no. 15825/06, §§ 49-55, 25 October 2007); Kats and Others v. Ukraine (no. 29971/04, §§ 85-86, 18 December 2008); and Logvinenko v. Ukraine, no. 13448/07, §§ 39-40, 14 October 2010).

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was not provided with any HIV treatment until March 2009, and with no treatment at all for other diseases.

He further complains, under Article 6 § 1, that the criminal trial against him was unfair.

The applicant also complains under Article 7 of the Convention in respect of his death sentence being commuted to life imprisonment rather than fixed-term imprisonment.

Lastly, the applicant refers to Articles 17, 34 and 53 of the Convention with regard to the facts of the present case.

QUESTIONS TO THE PARTIES

1.  Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular, during the period of his detention starting from 11 September 1997, was he provided with prompt and sufficient diagnoses and medical treatment for HIV, hepatitis C and other diseases?

2.  Did the alleged failure to provide the applicant with anti-retroviral therapy until March 2009 have a detrimental effect upon the applicant’s condition? (An independent expert medical opinion on this point is requested).