SERGEY ANTONOV v. UKRAINE - 40512/13 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 931 (22 October 2015)

In the case of Sergey Antonov v. Ukraine,

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

          Josep Casadevall, President,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          André Potocki,
          Helena Jäderblom,
          Aleš Pejchal,
          Síofra O’Leary, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 29 September 2015,

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

PROCEDURE

1. The case originated in an application (no. 40512/13) 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 Antonov (“the applicant”), on 21 June 2013.

2. The applicant, who had been granted legal aid, was represented by Mr Y.V. Ovsiyenko, a lawyer practising in Kharkiv, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.

3. The applicant alleged that he had not been provided with adequate medical assistance in detention and that he had no effective remedy in respect of this complaint. He also alleged that the State authorities had put pressure on him in respect of his application to the Court.

4. On 24 June 2013 the Court, following the applicant’s request under Rule 39 of the Rules of the Court, decided to invite the Government to ensure that the applicant has access to and is provided with the appropriate specialised care needed, including transfer to a specialised medical facility if necessary. On the same day the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1975. According to the most recently available information, in September 2013 the applicant arrived at Buchanska Correctional Colony No. 85, Ukraine, to serve a sentence. He has not informed the Court of his current whereabouts.

A. Medical treatment in detention

6. For a number of years the applicant has been suffering from various health problems. In particular, in July 2009, apparently also while serving a sentence, he was hospitalised in Buchanska Correctional Colony No. 85 and later transferred to a tuberculosis hospital in Slavyanoserbska Correctional Colony No. 61. Since November 2009 the applicant has been registered with the Kyiv City Aids Prevention and Control Centre. It appears that in December 2011 the applicant had a CD4+ cell count, the result of this count being 23 cells. No more detailed information about his precise diagnosis or about any further events between 2009 and September 2012 is available.

7. According to the applicant, on 7 September 2012 he was arrested on suspicion of theft. In a letter to this Court of 21 June 2013 the applicant stated that at the moment of his arrest he had had the following illnesses: human immunodeficiency virus (HIV) at clinical stage 4, post-tuberculosis residual effects, oropharyngeal candidiasis, and chronic hepatitis type C.

8. The decision on the applicant’s pre-trial detention was taken by a court on 10 September 2012. Between 27 September 2012 and 29 September 2013 the applicant was detained in the Kyiv Pre-Trial Detention Centre (Київський слідчий ізолятор) (“the SIZO”).

9. On arrival at the SIZO the applicant underwent an initial medical examination. The Government submitted a copy of the applicant’s initial medical examination card with the following information: height 1.77 m; weight 63 kg; blood pressure 125/80; blood type (unclear handwriting); bodily injuries none; infectious diseases: pulmonary tuberculosis - 2008, Botkin’s disease, - “-”, and sexually transmitted diseases - “-”. It was noted that the applicant had “no health complaints”. The applicant also submitted during the examination that he was registered with the Kyiv City Aids Prevention and Control Centre.

10. According to the applicant, because of the deterioration of his health in November 2012 he was examined in the above Centre. The only document provided in support of this statement is an advisory opinion issued by the Centre “on request” on 8 November 2012. The opinion stated, without noting when exactly the applicant had been examined, that the applicant had been diagnosed with HIV at clinical stage 4, post-tuberculosis residual changes, oropharyngeal candidiasis, and chronic viral hepatitis type C. The opinion also cited the result of the applicant’s CD4+ cell count performed on 13 December 2011. It was recommended that the applicant take antiretroviral therapy (“ART”) for life. In their submissions of 5 July 2013 following the applicant’s request under Rule 39 of the Rules of the Court (see paragraph 4 above), the Government noted that on 8 November 2012 the applicant had been diagnosed as above.

11. On 10 December 2012 the applicant agreed to undergo an HIV test following his “request submitted to the SIZO doctors”. According to the results of this test dated 12 December 2012, the applicant had HIV antibodies.

12. On 9 January 2013 the applicant underwent a biochemical blood analysis and a CD4+ cell count (the result of the count was 3 cells, or 0.5% (percentage of total lymphocytes)). The applicant was diagnosed with a high degree of immunological suppression and prescribed preventive anti-tuberculosis treatment.

13. On 14 February 2013 the applicant was placed in the infectious diseases ward of the SIZO. It was noted that the applicant’s state of health was of “medium seriousness”. He underwent an X-ray and various other examinations and was diagnosed with a tuberculosis relapse, extra-pulmonary tuberculosis, HIV infection at clinical stage 4, chronic hepatitis of the mixed type (toxic type and C type), and other diseases. The applicant was prescribed anti-tuberculosis treatment, detox and symptomatic treatment. The Government submitted that the applicant had received this treatment in full.

14. According to the available medical documents, between 14 February and 12 June 2013 the applicant’s weight dropped from 63 kg to 58 kg.

15. On 19 February 2013 the applicant was examined in the Kyiv City Anti-Tuberculosis Treatment Centre.

16. According to the medical file submitted by the Government, between 21 February and 2 July 2013 the applicant had consultations with SIZO doctors on the following dates: 21 and 28 February 2013; 7, 14, 21 and 28 March 2013; 4, 11, 18 and 29 April 2013; 6, 8 and 16 May 2013; 4, 19, 21 and 26 June 2013; and 2 July 2013.

It was noted on some of those occasions that the applicant complained of general weakness but that his condition was stable. He “bore the treatment in a satisfactory manner” and after the applicant had started the ART (see paragraph 18 below) the consistent advice was that the ART should be continued. On several occasions the applicant was also prescribed various medication.

17. On 26 February 2013 the applicant was prescribed “a preventive treatment”. It was recommended that anti-tuberculosis treatment be continued in order to prepare the applicant for the ART.

18. In his letter of 23 July 2013 the applicant submitted that the ART had been prescribed to him in February 2013. In his further observations the applicant stated that the treatment had only been prescribed to him on 30 March 2013. The exact date when the applicant started the ART is unclear.

19. On some occasions in March and April 2013 the applicant refused to take the ART. According to the applicant, the prescribed drugs did not agree with him.

20. On 26 April 2013 the applicant was prescribed the ART “under the TDF/FTC (tenofovir/emtricitabine +ztv) schema”.

21. On 16 May 2013 the applicant consulted an infectious diseases specialist from Kyiv City Clinic No. 5, and was prescribed a diet and various medication. It was noted that the applicant had again stopped the ART.

22. On 14 June 2013 SIZO officials, at the request of the police, informed the police that the applicant’s state of health was of “medium seriousness, with a tendency to deteriorate which might lead to a lethal outcome”. They confirmed that, apart from the said diagnoses, the applicant was suffering from inflammation of the lymph nodes, dermatitis, intestinal dysbacteriosis, and other diseases. The applicant was receiving anti-tuberculosis treatment, ART and symptomatic treatment. It was stated that the applicant needed long-term medical treatment in a specialised medical facility. Consequently, they asked for the investigation to be speeded up and for the possibility of the applicant’s release to be considered. The document was signed by the head of the SIZO and the head of the SIZO’s medical department.

23. On the same date the criminal case against the applicant was transferred to a court for consideration on the merits.

24. On 18 June 2013 the applicant’s lawyer requested the applicant’s release before the national court.

25. Between 26 June and 5 July 2013 the applicant underwent a number of tests (blood and urine tests and X-ray examinations). In particular, on 3 July 2013 a biochemical blood test and CD4+ cell count were performed. The increase in the CD4+ blood cells from 3 to 69 was established (from 0.5% to 4.5%). On 5 July 2013 an expert MTB/RIF diagnostic test of the applicant’s sputum for identification of Mycobacterium tuberculosis was carried out. The test was negative.

26. In his application form to this Court of 8 July 2013 the applicant stated that he was suffering from general weakness, intestinal pain, severe headache, increase in the number and size of mycotic ulcers on his body and face, liver and chest pain, haemorrhoids, diarrhoea, pain in the lymph glands, and severe shortness of breath. He also had severe pain in his left leg, had lost around 20 kilograms in weight, and had difficulty sleeping. His CD4+ cell count had, however increased. For the hepatitis C, ulcers and left leg problem there was no treatment at all.

27. On 11 July 2013 the SIZO administration informed the applicant’s lawyer that the applicant was in the SIZO medical ward. He was receiving anti-tuberculosis treatment, ART and symptomatic treatment. The applicant underwent an X-ray examination, had various tests (complete blood count, biochemical blood test, blood sugar test, CD4+ cell count, and urine and sputum analyses) and had a number of consultations with infectious diseases and tuberculosis specialists. It was noted that the applicant’s condition was stable and there was a positive dynamic. He did not need hospital treatment, but required monitoring by infectious diseases and tuberculosis specialists.

28. On the same date the Kagarlytskyy District Court, Kyiv Region, extended the applicant’s pre-trial detention for two months. The applicant’s lawyer’s request for release on medical grounds was rejected by the court as not substantiated by appropriate documents. It also rejected the applicant’s lawyer’s request for a medical examination for him.

29. The applicant stated that on 13 July 2013 an ambulance had been called for him. He was given painkillers on that occasion.

30. In a letter of 23 July 2013 to this Court the applicant stated that there had been no change in his medical treatment between 14 June and 23 July 2013. According to him, the current treatment was not improving his health.

31. On 5 and 14 August 2013 the applicant was examined by a tuberculosis specialist, who concluded that the applicant’s condition was stable.

32. On 29 September 2013 the applicant was transferred to Buchanska Correctional Colony No. 85 to serve a sentence (the parties did not submit to the Court the details of the applicant’s conviction). He was provided with ART medication for two months’ treatment. On arrival at the Colony the applicant was examined by a doctor and diagnosed with HIV infection (IV clinical stage), hepatitis in the stage of remission, and post-tuberculosis residual changes (category 5.1).

33. On 10 October 2013 the applicant complained of fever, cough and abdominal pain. He was diagnosed with aggravation of his hepatitis, gastroduodenitis, and bronchitis, and was placed in a medical ward.

B. Alleged pressure on the applicant

34. According to the applicant, on 25 June and 3 July 2013 he was subjected to psychological pressure by the SIZO authorities and their medical staff, who shouted at the applicant, called him names and told him to sign a paper stating that he had refused ART treatment of his own volition and that he had no complaints. The material in the case file includes a copy of a handwritten note dated 3 July 2013 and signed by the applicant. The note says the following:

“Despite the worsening of my state of health, the personnel of the SIZO medical ward are doing everything possible and I have no complaints about them”.

35. On 4 July 2013 the applicant had a meeting with his lawyer. On the same date the applicant complained about the alleged pressure to the prosecutor’s office. He stated that SIZO doctors and an unknown police officer had forced him to sign a paper “that he refused (or had refused)” the ART and had no complaints. According to the applicant, he was threatened with being beaten, with being removed from the medical ward, with being placed in a disciplinary cell, and that other detainees would suffer because of him. The applicant stated that he had signed a paper stating that he had no complaints against the SIZO doctors.

36. By a letter of 8 July 2013 the Shevchenkivskyy District Prosecutor’s Office sent the applicant’s lawyer’s complaint to the Kyiv Department of the State Prison Service “for consideration”.

37. On an unknown date a State Prison Service official informed the Head of the Kyiv Department of the State Prison Service that there had been “no breaches of law by the staff on the medical ward or by the SIZO authorities”. On 5 August 2013 this information was submitted to the prosecutor and to the applicant.

38. On 14 October 2013 the head of the SIZO medical ward informed the head of the SIZO that there had been no incidence of pressure being put on the applicant during the latter’s stay there.

39. On the same date inmates B. and F. testified to the head of the SIZO that there had been no incidence of any kind of pressure being put on the applicant, and that he had always been provided with medical assistance when he requested it.

II. RELEVANT DOMESTIC LAW

A. Law of Ukraine No. 1972-ХІІ of 12 December 1991 on the Prevention of the Spread of Diseases Associated With HIV and Legal and Social Protection of People Living with HIV (“the HIV Disease Prevention and Social Protection Act”)

40. This law determines the procedure for the legal regulation of efficient HIV-related prevention, treatment, care and support, and appropriate legal and social protection of people living with HIV. According to Article 6 of the Act testing of individuals aged 14 and older is provided on a voluntary basis, conditional on the availability of well-informed consent of an individual received after pre-test HIV counselling, which provides information about the particular details of HIV testing, its results and possible consequences. Testing is provided in confidence, guaranteeing non-disclosure of any personal information, including information on personal health status.

B. Medical Assistance and Sanitary Rules in Pre-Trial Detention Centres and Corrective Labour Institutions, approved by order no. 3/6 of the State Department for Enforcement of Sentences and the Ministry of Health of 18 January 2000 (“Порядок медико-санітарного забезпечення осіб, які утримуються в слідчих ізоляторах та виправно-трудових установах Державного департаменту України з питань виконання покарань”, затверджений наказом Державного департаменту України з питань виконання покарань та Міністерства охорони здоров’я України від 18 січня 2000 р. N 3/6)

41. The Rules stipulate that medical assistance for people with HIV is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations stating that accessible, informative and supportive counselling should be available before and after HIV testing (annex 28 to paragraph 4.3.4).

42. In accordance with paragraph 6.1.3 of the Rules, everyone should undergo an initial medical examination on arrival at a SIZO. The results of this examination are entered in the SIZO medical register. During the examination a doctor should inform the detainee about the possibility of undergoing an HIV test. All medical examinations should take place within three days of detainees’ arrival at the SIZO (paragraph 6.1.5).

C. Instruction “On Improvement of Medical Assistance Arrangements for HIV/Aids Patients” adopted by Order no. 120 of the Ministry of Health of Ukraine of 25 May 2000 (in force before 10 September 2013) (Інструкція “Про вдосконалення організації медичної допомоги хворим на ВІЛ-інфекцію/СНІД” затверджена наказом Міністерства охорони здоров’я України №120 від 25 травня 2000 р.)

43. According to paragraph 14 of the Instruction, depending on the stage of the disease, HIV-positive people should have their CD4+ cell count taken every one to six months.

D. Instruction “On Antiretroviral Treatment for People with HIV/Aids Detained in Penal Institutions and Pre-Trial Detention Centres” adopted by order no. 186/607 of the Ministry of Health and the State Department for Enforcement of Sentences of 15 November 2005 (in force before 10 December 2013) (Інструкція про організацію антиретровірусної терапії хворих на ВІЛ-інфекцію/СНІД осіб, які тримаються в установах виконання покарань та слідчих ізоляторах. Затверджена наказом Державного департаменту України з питань виконання покарань, Міністерства охорони здоров’я України від 15 листопада 2005 р. № 186/607)

44. According to paragraphs 2.1 and 2.3 of the Instruction, medical assistance for HIV-positive people is viewed as comprising compulsory clinical supervision, treatment of opportunistic diseases, and access to antiretroviral therapy. In-patient treatment of patients with stage III-IV HIV should be administered in prison hospitals (багатопрофільних лікарнях кримінально-виконавчої служби), and treatment for those suffering from active tubercular infections should be given in hospitals specialising in the treatment of tuberculosis.

45. Antiretroviral treatment should be prescribed by prison infectious diseases doctors who have undergone relevant training, or by doctors from local Aids centres. Monitoring of the ART in respect of those detained in pre-trial detention centres is carried out by local Aids centres (paragraphs 3.1 and 3.2.1 of the Instruction).

46. Laboratory monitoring of HIV infection and ART shall include HIV infection serosurvey, general blood test (haemoglobulin, red blood cells, thrombocytes, total leucocyte count and leucogram), biochemical blood test and determination of CD-4 level by flow cytofluorometry (if possible) (paragraph 3.2.2).

E. Coordination procedure between health institutions, bodies of internal affairs, penal institutions and temporary detention centres aimed at continuous clinical supervision of people with HIV, laboratory monitoring of development of the disease and administration of ART, adopted by order no. 692/775/1311/5 of the Ministry of Health, the Ministry of Internal Affairs and the Ministry of Justice of 5 September 2012 (in force since 12 October 2012) (“Про затвердження Порядку взаємодії закладів охорони здоров’я, територіальних органів внутрішніх справ, установ виконання покарань і слідчих ізоляторів у частині забезпечення наступності диспансерного спостереження за ВІЛ-позитивними особами, здійснення клініко-лабораторного моніторингу за перебігом хвороби та проведення антиретровірусної терапії”)

47. According to the above document (paragraphs 3.6-3.8 and 3.10), the authorities of a temporary detention centre shall inform Aids centres about people with HIV who are in detention. They shall enquire of Aids centres about the treatment in clinics of people with HIV. They shall further arrange clinical treatment and medical assistance for people with HIV/Aids, including treatment of opportunistic infections, in accordance with relevant documents adopted by the Ministry of Health.

III. RELEVANT DOMESTIC AND INTERNATIONAL MATERIALS

A. Health care in detention/Transmissible diseases

1. 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 2006at the 952nd meeting of the Ministers’ Deputies)

48. The relevant part of the European Prison Rules provides as following:

“Health care

39. Prison authorities shall safeguard the health of all prisoners in their care.

Organisation of prison health care

40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.

40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.

40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.

40.4 Medical services in prison shall seek to detect and treat physical or mental 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.

42.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall examine the prisoner if requested at release, and shall otherwise examine prisoners whenever necessary.

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 or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;

c. recording and reporting to the relevant authorities any sign or indication that prisoners may have been treated violently;

...

f. isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment;

g. ensuring that prisoners carrying the HIV virus are not isolated for that reason alone;

...

j. making arrangements with community agencies for the continuation of any necessary medical and psychiatric treatment after release, if prisoners give their consent to such arrangements.

43.1 The medical practitioner shall have the care of the physical and mental 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.

...

44. The medical practitioner or other competent authority shall regularly inspect, collect information by other means if appropriate, and advise the director upon:

a. the quantity, quality, preparation and serving of food and water;

b. the hygiene and cleanliness of the institution and prisoners;

c. the sanitation, heating, lighting and ventilation of the institution; and

d. the suitability and cleanliness of the prisoners’ clothing and bedding.

45.1 The director shall consider the reports and advice that the medical practitioner or other competent authority submits according to Rules 43 and 44 and, when in agreement with the recommendations made, shall take immediate steps to implement them.

45.2 If the recommendations of the medical practitioner are not within the director’s competence or if the director does not agree with them, the director shall immediately submit the advice of the medical practitioner and a personal report to higher authority.

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.”

2. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 11^th General Report, 2000

49. The relevant part of the Report reads as following:

“The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries. Although affecting the population at large, these diseases have emerged as a dramatic problem in certain prison systems. In this connection the CPT has, on a number of occasions, been obliged to express serious concerns about the inadequacy of the measures taken to tackle this problem. Further, material conditions under which prisoners are held have often been found to be such that they can only favour the spread of these diseases.

The CPT is aware that in periods of economic difficulties - such as those encountered today in many countries visited by the CPT - sacrifices have to be made, including in penitentiary establishments. However, regardless of the difficulties faced at any given time, the act of depriving a person of his liberty always entails a duty of care which calls for effective methods of prevention, screening, and treatment. Compliance with this duty by public authorities is all the more important when it is a question of care required to treat life-threatening diseases.

The use of up-to date methods for screening, the regular supply of medication and related materials, the availability of staff ensuring that prisoners take the prescribed medicines in the right doses and at the right intervals, and the provision when appropriate of special diets, constitute essential elements of an effective strategy to combat the above-mentioned diseases and to provide appropriate care to the prisoners concerned. Similarly, material conditions in accommodation for prisoners with transmissible diseases must be conducive to the improvement of their health; in addition to natural light and good ventilation, there must be satisfactory hygiene as well as an absence of overcrowding.

Further, the prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive.

In order to dispel misconceptions on these matters, it is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. More particularly, the risks of HIV or hepatitis B/C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained.

It must also be stressed that appropriate information and counselling should be provided before and - in the case of a positive result - after any screening test. Further, it is axiomatic that patient-related information should be protected by medical confidentiality. As a matter of principle, any interventions in this area should be based on the informed consent of the persons concerned.

Moreover, for control of the above-mentioned diseases to be effective, all the ministries and agencies working in this field in a given country must ensure that they co-ordinate their efforts in the best possible way. In this respect the CPT wishes to stress that the continuation of treatment after release from prison must be guaranteed.”

B. HIV/Aids in Ukraine/Conditions of detention

1. Ukraine Harmonised Aids Response Progress Reports

50. In order to monitor progress towards the targets set in the 2011 Political Declaration on HIV/AIDS adopted at the United Nations General Assembly High Level Meeting on Aids, Ukraine submitted several official reports to the Joint United Nations Programme on HIV/AIDS Secretariat.

51. The Ukraine Harmonized AIDS Response Progress Report for the period between January 2010 and December 2011 contained the following information:

“Ukraine is experiencing the most severe HIV epidemic in Eastern Europe and the CIS countries.

...

In 1987-2011 Ukraine officially registered 202,787 HIV infection cases among Ukrainian nationals, including 46,300 AIDS cases and 24,626 AIDS related deaths. The HIV epidemic continues to develop: starting from 1999 the number of new HIV cases remains on the rise. In 2011 Ukraine officially registered 21,177 new cases of HIV infection (46.2 per 100 thousand population) - this is the highest indicator value, registered from the time when HIV surveillance was first introduced in 1987.

...

In 2009-2011 HIV care indicators have shown a tendency to increase: 54.5%, 60.6%, 62.7%, respectively, however the HIV care coverage indicator remains insufficient (i.e., under 70%). Consequently one third of HIV positive individuals identified as a result of sero-epidemiological surveillance are not covered by HIV and clinical care (e.g., did not receive a test result, do not wish to enrol into medical care and so on), these patients remain source of infection which continues to drive the HIV epidemic.

...

Tuberculosis continues to be the most wide spread AIDS related disease in Ukraine; it is diagnosed in 5,745 cases (62.5%) out of 9,189 new AIDS cases.

Analysis of the HIV epidemic in Ukraine demonstrates that the infection weighs heavy on the country’s health care system - the speed of HIV epidemic development surpasses the efforts to control and treat the infection, including provision of antiretroviral therapy (ARV) to all eligible patients.

...

As of 01.01.2012 Ukraine has 120,148 Ukrainian nationals in HIV care in health care facilities (264.3 per 100 thousand population), including correction facilities of the State Penitentiary Service of Ukraine, out of which 18,751 patients diagnosed with AIDS (41.2 per 100 thousand population).

...

In 2009 second generation surveillance was used for the first time to study HIV prevalence among inmates. Results show that in 2009 HIV prevalence among inmates was 15% (c.i. 13% - 17%).

In 2011 the HIV prevalence study was organized again in the same correction facilities using methodology and sampling sizes of the previous study. In that period of time HIV prevalence rates remained practically the same: 13.7% (c.i. 11.8% - 15.6%).”

52. According to the Ukraine Harmonized AIDS Response Progress Report (reporting period: January, 2012 - December, 2013):

“Nowadays Ukraine takes one of the first places among European countries by the number of HIV-positive people. According to the estimated data, as of the beginning of 2013, 238 thousand of HIV-infected people aged 15 years and older have been living in the country.

...

...groups that have become more and more affected by HIV epidemic in recent years include ..., prisoners and detained persons.

...

During 2012-2013 98 000 people staying at institutions of the State Penitentiary Service of Ukraine ... were tested, which made it possible to increase the access to voluntary counselling and testing by several times - from 18,2 % in 2011 to 77,2 % in 2013. Achievement of such results became possible due to establishment of cooperation between non-governmental organizations and governmental institutions.”

2. HIV/AIDS treatment and care in Ukraine, the World Health Organisation (“WHO”)/Regional office for Europe report, April 2013, part of the overall Ukrainian National AIDS program evaluation conducted in September 2012

53. The extracts from the report read as following:

“Prisoners have rather high HIV prevalence: in 2011, 10% (2463 out of 23 779 tested were found HIV-infected). Since HIV testing in the prison system is client-initiated, it is not possible to evaluate coverage of prison populations under a provider-initiated HIV testing system.

HIV treatment in prisons is entirely financed by the Global Fund grant and is therefore not sustainable.

...

5.2. Human rights

Ukraine has adopted a comprehensive framework of international human rights instruments and standards for the promotion and protection of the fundamental rights of humans, including the right to health. Ukraine has endorsed national laws, policies and programmes related to health, many of which reflect international human rights instruments, including the National AIDS Law (2010) and the National AIDS Programme 2009-2013 - the strategy to achieve universal access. Despite positive steps towards strengthening legislative provisions for equal access to HIV treatment and care, serious discrepancies prevail in implementation. These are most evident in the lack of access to ARV medicines and associated laboratory monitoring for those who need it, which contravenes the fundamental human right to health, the constitutional right of all Ukrainians to health care free of charge (Constitution of Ukraine 1996, Art 49) and the right to free access to ART and treatment of opportunistic infections (National AIDS Law Art 15). Limited coverage of adequate testing, counselling and referral services, and periodic shortages of ARV medicines and commodities, result in lack of guaranteed access to and retention in ART for all those who are eligible. In addition, the lack of access to CD4 and VL tests presents barriers to timely enrolment for people who have been diagnosed with HIV. Consequently, many people initiate ART late in the course of the disease and are thus deprived of the optimal clinical benefits of ART. Continuing poor integration of services for key populations at risk of HIV and opportunistic infections, particularly PWID-who not only constitute the population most at risk of HIV in Ukraine, but are also at increased risk of active TB and hepatitis B and C-contributes to unequal access to life-saving services for those who need them most.”

3. Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 October 2013

54. The relevant parts of the report provide as following:

“142. ...Indeed, the provision of health care to inmates in Ukraine remains problematic, mainly due to the shortage of staff, facilities and resources. During the visit, the Committee’s delegation again heard numerous complaints from prisoners in all the establishments visited concerning delays in access to doctors (in particular specialists), lack of medication, and the inadequate quality of care.

...

143. The health-care service of Kyiv SIZO comprised, in theory, 42 full-time posts (18 uniformed and 24 civilian); however, 12.5 of those posts were officially vacant (including four for uniformed and 8.5 for civilian personnel). In practice, the task of caring for the health needs of 2,618 inmates (including several dozens of patients in the medical unit) that the establishment was accommodating at the time of the delegation’s visit rested on the shoulders of 12 doctors (who, however, jointly occupied the equivalent of 8.6 full-time posts) and 11 feldshers, working on the equivalent of four full-time posts. There was also a nurse, an X-ray technician, a laboratory technician, a pharmaceutical technician and two “disinfectors”.

...

144. To sum up, the health-care staffing resources in the penitentiary establishments visited were generally not sufficient to adequately meet the needs of their respective prisoner populations, especially as regards the number of feldshers and nurses. This situation very much contributed to delays in access to health care and to numerous complaints from prisoners concerning its quality. Further, several vacancies (in particular, as regards medical specialists) additionally restricted prisoners’ access to certain treatments.

...

151. In all the establishments visited, the delegation observed that the various medical records and other medical documentation were generally poorly kept, with very succinct, missing and/or incoherent information...

159. ... Both the TB screening procedures (including systematic X-rays carried out prior to or upon admission and repeated subsequently at regular intervals, as well as laboratory sputum tests if required) and treatment appeared to be on the whole adequate, in line with the DOTS and DOTS+ protocols. In particular, the CPT’s delegation noted an improvement at Kyiv SIZO, where second line anti-TB medication was now available.

... As for the living conditions in the TB units, the unit at Kyiv SIZO is of particular concern to the CPT: it was dilapidated, dark and poorly ventilated, and the walls in some of the cells which were dirty and affected by mold. The cells’ equipment left much to be desired: worn-out beds, dirty bedding, (only) partially screened in-cell toilets. Conditions were also poor in the unit’s shower facility...

160. Each of the establishments visited was also holding a number of HIV-positive prisoners, who were not segregated on the grounds of their medical condition. HIV tests were offered on a confidential and voluntary basis, and anti-retroviral treatment was available (likewise partially financed by donations from the Global Fund).”

C. WHO Aids/HIV related materials

55. The relevant parts of the WHO document “WHO case definitions of HIV for surveillance and revised clinical staging and immunological classification of HIV-related disease in adults and children”, 2006, read as follows:

“The pathogenesis of HIV infection is largely attributable to the decrease in the number of T cells (a specific type of lymphocyte) that bear the CD4 receptor (CD4+). The immune status of a child or adult living with HIV can be assessed by measuring the absolute number (per mm³) or percentage of CD4+ cells, and this is regarded as the standard way to assess and characterize the severity of HIV-related immunodeficiency. Progressive depletion of CD4+ T cells is associated with progression of HIV disease and an increased likelihood of opportunistic infections and other clinical events associated with HIV, including wasting and death.

...

The normal absolute CD4 count in adolescents and adults ranges from 500 to 1500 cells per mm³ of blood”

56. Other relevant WHO materials on an immunological evaluation of patients and ART can be found in the judgment in the case of E.A. v. Russia (no. 44187/04, §§ 31-35, 23 May 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

57. In his application form of 8 July 2013 the applicant complained under Article 3 of the Convention that he had not received adequate medical assistance in detention. In particular, he did not receive ART after his arrest, which, according to the applicant, caused an aggravation of his condition and new health problems such as respiratory distress, diarrhoea, numbness in the left leg, severe headaches, weight loss and weakness. There was no continuous monitoring or diagnostics of his condition, which was aggravated by the presence of HIV, lung and extra-pulmonary tuberculosis, and hepatitis C. According to the applicant, there was no adequate treatment of his tuberculosis and hepatitis C, thus no special treatment and no continuous monitoring. In particular, the standard tuberculosis treatment had no positive effect. The applicant finally complained that his state of health had worsened in detention; moreover, he had had no special diet and only insufficient access to fresh air and natural light in the cell.

58. Article 3 of the Convention, relied on by the applicant, reads as follows:

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

A. Admissibility

59. The Government did not submit any observations on the admissibility of this complaint.

60. 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. The applicant’s submissions

61. In his observations submitted on 20 December 2013, the applicant stated that his complaints covered the period between September 2012 and August 2013 only. In particular, he did not complain about receiving no ART after June 2013, or about his medical treatment in Buchanska Correctional Colony No. 85.

62. The applicant disagreed with the Government’s statement that he had been provided with adequate medical assistance. In particular, the applicant submitted that he had been admitted to the SIZO on 27 September 2012, but had been diagnosed for the first time as having various conditions only on 8 November 2012. Consequently, for more than forty days he was not diagnosed, and obtained no medical treatment. The applicant’s CD4+ cell count was performed for the first time only on 9 January 2013, and the ART was prescribed only on 30 March 2013, nearly six months after the applicant’s arrival at the SIZO. The applicant also stated that there had been no treatment for his hepatitis C or for candidiasis, despite his complaints about weakness and liver pain.

63. The applicant noted that the seriousness of his diseases had required constant and systematic monitoring of his treatment and state of health. However, it appears from the medical documents submitted by the Government that in January 2013 the applicant was examined only twice (on 9 and 22 January 2013); in February 2013 he was not examined until 14 February 2013 (thus remaining without medical attention for twenty-one days). It was noted that on 14 February 2013 the applicant complained of severe deterioration of his general health and of enlarged lymph glands. After that, according to the medical records, the applicant was examined on 21 and 28 February and 7, 14, 21 and 28 March 2013. Later the applicant was examined every five, seven or sometimes every eleven days. However, sometimes the applicant’s complaints (such as that of 14 February 2013 about deterioration of his health and enlarged lymph glands) were not adequately met. The applicant stated that these facts confirmed that the SIZO medical staff had not monitored his health adequately and had made no attempts to monitor the effectiveness of his treatment and its effects on his health. Moreover, sometimes his complaints were not even recorded.

64. The applicant agreed that his tuberculosis had been treated in the SIZO. However, his other diseases were not treated, and they were serious enough to be life-threatening.

65. The applicant also pointed out that, according to the document issued by the SIZO authorities, his health had been deteriorating. Moreover, the very fact that the applicant’s state of health improved in July 2013 after his complaint to the European Court of Human Rights (the number of CD4+ cells increased and the tuberculosis “stabilised”) is additional evidence of the absence of proper treatment before July 2013.

66. The applicant also noted that on 13 July 2013 an ambulance had been called for him, but he had been only given painkillers to relieve his symptoms.

67. The applicant further stated that on arrival at the Buchanska Correctional Colony in September 2013 he had been hospitalised as an emergency, which, according to him, was evidence that he had not received proper treatment in the SIZO.

68. The applicant finally submitted that he had stopped the ART because of a painful reaction to the treatment. However, there was no attempt to determine the cause of the reaction and to consider changing the treatment.

2. The Government’s submissions

69. The Government submitted that the applicant had received the medical assistance he needed for all his health problems throughout the period of his deprivation of liberty. In the SIZO the applicant received ART daily and he recovered from his tuberculosis episode. He was systematically examined and all of his complaints were adequately addressed by the SIZO medical ward staff. Therefore, the Government stated that the applicant’s rights under Article 3 of the Convention had not been breached.

3. The Court’s assessment

70. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum 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).

71. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).

72. The Court has emphasised on a number of occasions that the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty 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 Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). A lack of appropriate medical care may thus amount to treatment contrary to Article 3 of the Convention (see, among many authorities, Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, 29 November 2007; Ukhan v. Ukraine, no. 30628/02, 18 December 2008; and Petukhov v. Ukraine, no. 43374/02, 21 October 2010).

73. The Court considers that the “adequacy” of medical assistance remains the most difficult element to determine. When assessing it, the Court considered that the mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov, cited above, § 116). 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 Khudobin v. Russia, no. 59696/00, § 83, ECHR 2006-XII (extracts)), that diagnosis and care are delivered promptly and accurately (see Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006; and Hummatov, cited above, § 115), and that where necessitated by the nature of a medical condition supervision is regular, systematic and involves a comprehensive treatment strategy aimed at helping the detainee to recover or preventing the aggravation of his condition, rather than addressing them on a symptomatic basis (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006, and Hummatov, cited above, §§ 109 and 114). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Holomiov v. Moldova, no. 30649/05, § 117, 7 November 2006, and Hummatov, cited above, § 116). At the same time the State’s obligation to cure a seriously ill detainee is one as to means, not as to result (due diligence test) (see Goginashvili v. Georgia, no. 47729/08, § 71, 4 October 2011).

74. 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 prison system are limited compared to those of civil[ian] clinics” (see Grishin v. Russia, no. 30983/02, § 76, 15 November 2007).

75. 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).

76. Turning to the present case, the Court notes that, according to the applicant, at the moment of his arrest in September 2012 he was suffering from a number of diseases, including HIV infection clinical stage IV. Although the applicant provided no evidence about his state of health and medical treatment (if any) shortly before his arrest, it appears that by September 2012 the applicant had already been HIV positive for at least three years. According to the evidence in the case file, in December 2011 the applicant’s CD4+ cell count was already very low and at that time he apparently already needed the ART. However, there is no information as to whether the applicant ever received ART before his arrest and, if he did, whether he informed the SIZO administration about the necessity to re-start/not to interrupt the ART. The parties, however, agreed that when he arrived at the SIZO the applicant informed the SIZO authorities about his registration as a person with HIV at the Kyiv City Aids Prevention and Control Centre.

77. As regards the other health problems referred to by the applicant, the Court observes that, according to the medical documents submitted by the Government, when the applicant arrived at the SIZO he underwent an initial medical examination. It was noted that the applicant had “no health complaints”. None of the illnesses that the applicant claimed to have at the moment of his arrest (see paragraph 7 above) and which were diagnosed following the subsequent medical examinations, were mentioned in the initial medical examination report.

78. The Court notes that it is unclear what particular information about his HIV infection status and other diseases the applicant had when he arrived at the SIZO, and what information he gave the SIZO doctors about his health problems. However, even assuming that the applicant stated only that he was registered at the Kyiv Aids Centre, the Court notes that there were no attempts by the SIZO medical staff to clarify with the applicant his exact state of health, whether he had any other HIV-related illnesses, and what kind of treatment he had and/or currently needed in this respect.

79. The Court further notes that the evidence in the case file includes an advisory opinion issued by the local Aids Centre “on request” on 8 November 2012. It is, however, unclear who requested this opinion, whether the applicant was indeed examined in the Centre on this date, and if it was not the SIZO authorities but the applicant’s lawyer who requested this information when the authorities became aware of it. In any event, the SIZO doctors were aware from his arrest in September 2012 that the applicant had been registered in the Aids Centre, however, the first attempt to find out what kind of medical treatment the applicant required was made in the beginning of January 2013, four months after he entered the SIZO. In particular, by the time the relevant test was performed the applicant’s CD4+ cell count had dropped drastically. In addition, he had a tuberculosis relapse and was finally admitted to the SIZO medical ward in February 2013.

80. The Court observes that from the middle of February 2013 onwards the applicant was examined by doctors, was diagnosed, and was prescribed treatment. By July 2013 his CD4+ cell count had increased and he had recovered from the episode of tuberculosis.

81. The Court notes that the issue of inadequate medical assistance for people with HIV in Ukrainian detention facilities has already been addressed by the Court in a number of cases (see Kats and Others v. Ukraine, no. 29971/04, 18 December 2008; Pokhlebin v. Ukraine, no. 35581/06, 20 May 2010; and Salakhov and Islyamova v. Ukraine, no. 28005/08, 14 March 2013). In particular, in Kats and Others, despite the authorities’ knowledge that the applicants’ daughter/mother was HIV-positive, there was no relevant treatment at all, and this led to the person’s death. In Salakhov and Islyamova the first applicant’s treatment for an HIV-related infection was sporadic and irregular. Moreover, the failure of the Ukrainian health care system to adequately address the HIV epidemic was noted in the recent reports cited above (see paragraphs 50-53 above), with prisoners mentioned as one of the most severely affected groups.

82. The Court notes that in the present case at a particular point in time in 2013 the applicant began receiving treatment which led to an improvement in his health. However, this treatment was only begun when the applicant’s condition was already critical.

83. In particular, the Court notes that the applicant’s initial medical examination in September 2012 appears to have been very superficial, and despite the SIZO authorities’ awareness that the applicant was HIV-positive, no attempts were made to seek further information about his HIV-related health issues, and the first CD4+ cell count test was performed only four months after the applicant’s arrival in the SIZO. The results of this test and other available evidence confirm that the applicant’s condition was very serious well before the test.

84. In respect of the applicant’s statements that not all his complaints were noted or addressed, and that not all his diseases were treated, in particular, after February 2013, the Court reiterates that an unsubstantiated allegation of no, delayed, or otherwise unsatisfactory medical care is normally not sufficient to disclose an issue under Article 3 of the Convention. A credible complaint should normally include, among other things, sufficient reference to the medical condition in question, medical prescriptions that were sought, made or refused, and some evidence - for instance, expert reports - capable of disclosing serious failings in the applicant’s medical care (see Valeriy Samoylov v. Russia, no. 57541/09, § 80, 24 January 2012).

85. The Court further notes that it has already examined a large number of cases against Ukraine raising complaints of inadequate medical care afforded to detainees (see, among the most recent cases, Barilo v. Ukraine, no. 9607/06, 16 May 2013, and Kushnir v. Ukraine, no. 42184/09, 11 December 2014). In the absence of an effective remedy in Ukraine to air those complaints (see paragraphs 96-97 below), the Court has been obliged to perform a first-hand evaluation of the evidence before it to determine whether the guarantees of Article 3 of the Convention have been respected.

86. In this respect the Court reiterates that where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny” (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 148, 21 April 2011). However, this task is especially complicated by the need to assess evidence calling for expert knowledge in various medical fields. In this connection the Court emphasises that it is sensitive to the subsidiary nature of its role, and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). The Court further reiterates that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether the applicant in fact required such treatment during the relevant period (see E.A., cited above, § 57) and whether the choice of treatment methods appropriately reflected the applicant’s needs (see Ukhan, cited above, § 76, and Okhrimenko v. Ukraine, no. 53896/07, § 71, 15 October 2009). In view of the above and paying particular attention to the vulnerability of applicants in view of their detention, the Court considers that it is for the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention.

87. In line with the above-mentioned principles the Court considers that on the basis of the medical evidence submitted by the parties and in the absence of any independent medical evaluation of the applicant’s medical file, it cannot conclude whether the applicant’s complaints concerned symptoms of a particular disease for which the applicant was receiving treatment or if they were manifestations of different diseases and required separate attention.

88. However, the Court notes that the evidence submitted by the Government in support of their statement that the applicant’s medical care was adequate is unsatisfactory. The copy of the applicant’s medical file is of very poor quality, very often unreadable and the information is very vague and fragmented. In particular, it is impossible to conclude which complaints of the applicant were addressed and to verify to what extent the prescriptions were followed through. Given the applicant’s serious and numerous health problems reflected in his diagnosis, the Court considers, judging from the available material, that the Government failed to provide convincing evidence that the applicant indeed received a medical response to his health needs other than those generated by his tuberculosis and HIV infection (see Ukhan, cited above, §§ 79-80, and, mutatis mutandis, Vitkovskiy v. Ukraine, no. 24938/06, § 129, 26 September 2013).

89. The Court finally notes that it is impossible to draw any conclusions about the material conditions of the applicant’s detention given the absence of any particular details from the applicant in this respect (see paragraph 57 above). In particular, the applicant did not submit any observations in respect of his initial complaint, and did not specify in which particular cell he stayed while detained in the Kyiv SIZO.

90. The Court finally concludes that the failure of the SIZO authorities to promptly diagnose the applicant’s condition and to provide prompt and comprehensive medical assistance to the applicant while in detention amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

91. The applicant complained that he had no effective domestic remedy in respect for his complaint under Article 3 of the Convention. He relied on Article 13 of the Convention, which reads as follows:

“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.”

A. Admissibility

92. The Government did not submit any observations as to the admissibility of this complaint.

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

B. Merits

94. The applicant stated that the national legislation did not provide for effective remedies in respect of lack of adequate medical care in prison. In particular, his lawyer complained to the SIZO authorities and to a court about the applicant’s poor state of health and requested his release so that he could be treated in a specialised institution, but his requests were refused. The court also failed to respond to the SIZO authorities’ request for the proceedings to be accelerated in view of the applicant’s state of health. Also, in the applicant’s view, complaints to a prosecutor and to a court in administrative proceedings are both ineffective, since neither would change the situation at the moment when medical assistance was needed.

95. The Government submitted that the applicant complained that his rights had been violated on 4 July 2013. His complaint was transferred to the State Department for Enforcement of Sentences. Following investigation it was concluded that the SIZO administration and its medical staff had not breached the law. Therefore, the applicant had an effective remedy in respect of his complaints.

96. The Court points out that Article 13 of the Convention guarantees availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. With reference to its earlier case-law (see, among other authorities, Melnik, cited above, §§ 113-16, and Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006), its recent findings (see Barilo, cited above, §§ 104-105), and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had in practice an opportunity to obtain effective remedies for his complaint, that is to say remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.

97. The Court concludes, therefore, that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaint in respect of the lack of appropriate medical assistance.

III. ALLEGED HINDRANCE OF THE RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION

98. The applicant further complained that he had been subjected to psychological pressure in respect of his application before this Court. He relied on Article 34 of the Convention, the relevant parts of which read as follows:

“The Court may receive applications from any person ... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”.

A. The parties’ submissions

99. The Government contended that there had been no hindrance of the applicant’s right of individual petition. Referring to the Court’s case-law, the Government stated that in order to find that the State failed to comply with requirements of Article 34 of the Convention, the applicant’s allegations should be supported by facts and, in particular, the State’s intention to hinder the applicant’s right to lodge an individual petition should be demonstrated (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, ECHR 2012 (extracts)).

100. The Government submitted that the applicant’s complaints in this respect had been investigated by the State Prison Service and it had been concluded that the SIZO authorities and medical staff had not breached any law. These findings were confirmed by a report by the head of the SIZO medical ward and by explanations given by the applicant’s cellmates.

101. The Government submitted that there was no evidence in support of the applicant’s statements. Moreover, all his submissions had reached the Court and the applicant was free to present his complaints.

102. The applicant stated that the Government’s arguments were unconvincing. In particular, the investigation into the applicant’s complaints referred to by the Government could not be considered an appropriate one, since the SIZO authorities and medical staff were employed in the prison system. Moreover, the conclusion about absence of any breaches of law was not based on any evidence. In particular, the testimonies of the applicant’s cellmates cannot be regarded as reliable evidence, since they were in custody and thus under the total control of the SIZO authorities.

103. The applicant also relied on the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 1 to 10 December 2012 in respect of investigation of complaints about prison officers:

“The CPT cannot conclude that the requirements of an “effective” investigation have been met in the above cases. On the one hand, it appeared that prosecutors placed a heavy reliance on the material provided by the State Penitentiary Service in their decisions as to whether or not to open criminal proceedings. On the other hand, the lack of confidence expressed by many prisoners interviewed in the capability and determination of the prosecuting authorities to carry out investigations worthy of the name into cases of alleged ill-treatment by penitentiary staff (or fellow inmates at the instigation of staff) must be taken into account. At the end of the 2012 visit, the delegation raised this particular issue with the Prosecutor General.

In the CPT’s view, if a body in charge of investigations of this type is to enjoy public confidence, it should not only be independent but should also be seen to be independent of the penitentiary and other law enforcement services.

The CPT recommends that steps be taken to set up without delay a national specialised team, whose role is to carry out investigations throughout the country into cases involving alleged ill-treatment inflicted by members of penitentiary staff (or at the instigation of such staff) or any other public officials (such as police officers), and to provide it with its own support staff for the operational conduct of the investigations. Further, the Committee recommends examining the feasibility, in the medium term, of completely separating such a team from the Prosecution Service so as to establish a genuine independent specialised agency for investigations of this type.”

104. The applicant finally submitted that the pressure on him was quite strong and his state of health prevented him from analysing the situation. If it had not been for his lawyer the applicant would have withdrawn his application.

B. The Court’s assessment

105. The Court reiterates at the outset that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Iulian Popescu v. Romania, no. 24999/04, § 29, 4 June 2013).

106. The Court further reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996-IV). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, 25 May 1998, § 159, Reports of Judgments and Decisions 1998-III).

107. Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see Akdivar and Others, § 105, and Kurt, § 160, both cited above). The applicant’s position might be particularly vulnerable when he is held in custody with limited contact with his family or the outside world (see Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003).

108. In the present case the applicant stated that he had been intimidated to induce him to make statements that the medical assistance received by him had been adequate and that possible shortcomings such as the absence of ART had to be imputed to the applicant himself. The Government indeed provided a handwritten note signed by the applicant stating that the applicant had no complaints about the SIZO medical staff (see paragraph 34 above), which contradicts his submissions before this Court, both before and after the date on the note. The Government did not specify the circumstances in which this note was obtained. However, the Court is concerned that the note in question was obtained ten days after the Court had invited the Government under Rule 39 of the Rules of the Court to ensure that the applicant is provided with the appropriate medical assistance.

109. The Government further submitted that the applicant’s allegations about psychological pressure on him had been duly checked and had not proved true. The Court, however, notes that the applicant’s complaint in respect of intimidation was transferred by the prosecutor to the prison authorities, whose subordinates in the first place were suspected of intimidating the applicant. Furthermore, all evidence submitted by the Government originated either from prison staff or from the applicant’s fellow inmates, who were under the control of the prison authorities. Therefore, the Court is not convinced by the Government’s arguments.

110. Given the applicant’s consistent submissions and in the absence of any other credible explanation about the origin of the note in question, the Court considers that the applicant was indeed approached by the authorities to induce him to make statements which would undermine his application before this Court. In these circumstances the State has failed to fulfil its obligation under Article 34 not to hinder the effective exercise of the right of individual petition.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

111. 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

112. The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage.

113. The Government maintained that there had been no violation of the applicant’s rights in the present case and that the amount claimed was excessive.

114. The Court, ruling on an equitable basis, considers it appropriate to allow the applicant’s claim in full.

B. Costs and expenses

115. The applicant did not claim any compensation for costs and expenses.

C. Default interest

116. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

V. RULE 39 OF THE RULES OF COURT

117. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.

118. However, given that the factual circumstances which led to the application of Rule 39 of the Rules of Court in the present case have changed, the Court considers that it is appropriate to discontinue the indication made to the Government under Rule 39 (see paragraph 4 above).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds that the State has failed to fulfil its obligation under Article 34 of the Convention not to hinder the effective exercise of the right of individual petition;

5. 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, EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at 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;

6. Decides to discontinue the application of Rule 39 of the Rules of Court.

Done in English, and notified in writing on 22 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Josep Casadevall
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SERGEY ANTONOV v. UKRAINE - 40512/13 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 931 (22 October 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/931.html Cite as: [2015] ECHR 931