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FOURTH SECTION

 

 

 

 

 

 

CASE OF CHUPRYNA v. UKRAINE

 

(Application no. 876/16)

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

29 January 2019

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Chupryna v. Ukraine,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 8 January 2019,

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

PROCEDURE

1. The case originated in an application (no. 876/16) 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 Pavlo Volodymyrovych Chupryna ("the applicant"), on 30 December 2015.

2. The applicant was represented by Mr A.V. Leshchenko, a lawyer practising in Odessa. The Ukrainian Government ("the Government") were represented by their Agent, Mr I. Lishchyna of the Ministry of Justice.

3. On 7 September 2016 the Government were informed of the complaints under Articles 3 and 13 of the Convention concerning the alleged lack of access to adequate medical treatment in detention, the conditions of the applicant's detention in a disciplinary cell from October 2015 to January 2016 and the lack of effective domestic remedies in respect of the above complaints, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The application was granted priority under Rule 41 of the Rules of Court. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1978. According to the most recently available information, at the time of the events in June 2016 the applicant was detained in Kirovograd pre-trial detention facility no. 14 ("the SIZO").

5. In January 2013 the applicant started serving a sentence of ten years' imprisonment for murder. In February 2013 he was placed in Kirovograd prison no. 6 ("the Prison").

6 . In April 2014 the applicant's health deteriorated. He complained of fever, abdominal pain and vomiting. Following his examination in Kirovograd Regional Hospital, the applicant was diagnosed with chronic calculous cholecystitis (calculi within the gallbladder) and acute chronic gastroduodenitis.

7 . On 11 April 2014 the applicant complained of feeling unwell to the Prison medical unit. He was examined immediately and diagnosed with acute gastroduodenitis and chronic calculous cholecystitis. According to the case-file material, he was not prescribed medical treatment.

8 . On 22 August 2014 the applicant further complained to the Prison medical unit of feeling unwell. He was diagnosed with acute chronic gastroduodenitis and was prescribed dietary treatment for three days.

9 . On 6, 8 and 13 October and 5 November 2014, and 6 March 2015, in response to further complaints by the applicant, he was prescribed outpatient treatment. According to the Government, the outpatient treatment consisted of medicine, which was administered to the applicant in various combinations, notably, papaverine, co-trimixazole, azithromycin, and bromhexin.

10 . Following another such complaint, on 16 April 2015 the Prison doctor diagnosed the applicant with acute chronic gastroduodenitis and recommended that he be further examined at a specialist institution with a view to deciding whether he required surgery. The parties did not inform the Court whether the applicant had undergone the recommended examination.

11. From 2 to 29 May and from 3 to 11 June 2015 the applicant underwent inpatient treatment for acute chronic gastroduodenitis in the Prison medical unit. According to the Government, he was administered the prescribed medication and his state of health improved.

12. On 10 July 2015 he was examined by a general practitioner of Kirovograd City Hospital, who confirmed the earlier diagnoses and recommended inpatient treatment and dietary treatment.

13. From 28 July to 10 September 2015 the applicant underwent inpatient treatment for calculus cholecystitis in unstable remission at the hospital in Bucha prison no. 85. The applicant alleged that the treatment which he had received there had been inadequate and had led to an aggravation of his condition. He also alleged that surgery for his calculus cholecystitis had been scheduled but had not been performed owing to lack of funds.

14. On 21 September 2015 he was transferred back to the Prison. In the meantime he had been detained in the Kyiv SIZO and the Odessa SIZO. During his detention from 14 to 21 September 2015, he complained to the SIZOs' administration of abdominal pain and vomiting, but allegedly to no avail.

15. On 8 October 2015 the applicant was placed in a disciplinary cell in the Prison for three months as a penalty for consumption of alcohol. According to the applicant, the conditions of his detention there were very poor: he suffered from lack of fresh air, low temperatures, unsanitary conditions and high humidity. Furthermore, he allegedly had no mattress to sleep on.

16. According to the Government, on 8 October 2015 the Prison governor issued a decision on the applicant' placement in a disciplinary cell for consumption of alcohol. On 30 December 2015 he was early released from the disciplinary cell.

17 . On 12 October 2015 the applicant's lawyer complained to the Kirovograd regional prosecutor's office that the applicant was not receiving the requisite medical care in detention. He submitted, in particular, that the surgery which the applicant required had been postponed owing to the lack of funds.

18 . On 23 October 2015 the Prison doctor examined the applicant once again and diagnosed him with chronic calculous cholecystitis in unstable remission. He prescribed the applicant medication and recommended elective surgery.

19 . On 9 November 2015 the prison service of Kirovograd Region sent a request for the applicant's placement in the hospital in Bucha prison no. 85. On 9 December 2015 this request was refused owing to the lack of available places in the hospital.

20. On 11 December 2015 and 16 January 2016 the prison service again requested the applicant's placement in the hospital at correctional colony no. 4 of Dnipropetrovsk Region. On 27 January 2016 the prison service took a decision on the applicant's transfer to the hospital for the required surgery.

21 . On 12 February 2016 the applicant informed the Prison governor that he had refused the treatment offered to him in the hospitals within the Dnipropetrovsk and Kharkiv SIZOs because of lack of trust in the doctors of those facilities. On the same day the applicant gave his consent to receive treatment at any other medical institution.

22 . On 22 April 2016 following deterioration of his health, the applicant was transferred by ambulance to Kirovograd Regional Hospital, where he was examined by a surgeon and diagnosed with calculous cholecystitis, chronic pancreatitis and "diffusive changes" of the liver ( дифузні зміни печінки ).

23. According to the Government, as of November 2016 the applicant's state of health was satisfactory. The Government did not provide documentary evidence in respect of that statement.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

24. The applicant complained that the conditions of his detention in a disciplinary cell from 7 October to 30 December 2015 had been inadequate and that he had not received adequate medical treatment in detention. He relied on Article 3 of the Convention, which reads as follows:

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

A. Admissibility

25. The Government claimed that the applicant had failed to exhaust domestic remedies in respect of his complaint concerning the conditions of his detention in a disciplinary cell from 7 October to 30 December 2015, as he had not complained to a prosecutor. In the Government's view, such an action could have been effective and had constituted an accessible remedy in the applicant's situation.

26. The applicant did not comment on the Government's objection.

27. The Court does not find it necessary to deal with the Government's objection as to the exhaustion of domestic remedies, as it considers that this part of the application is inadmissible in any case for the following reasons.

28. The Court reiterates that, although in cases concerning the material conditions of an applicant's detention it has not always required that an applicant support each and every allegation with documentary evidence, recognising that relevant information and the possibility of investigating the facts in such cases lie primarily in the hands of the authorities, in order for it to reverse the burden of proof and examine the merits of the complaints, they must at least have been clearly and consistently formulated (see, for instance, Ukhan v. Ukraine , no. 30628/02, § 64, 18 December 2008).

29. The Court observes that in contrast to quite detailed complaints of lack of medical treatment, most of the applicant's submissions concerning this part of the application were limited to vague and general statements. They concerned alleged lack of fresh air, low temperatures, unsanitary conditions, high humidity, and lack of mattress to sleep on. The applicant did not provide any details or substantiation. He also failed to specify what the nature, extent and duration of the suffering caused by the impugned restrictions had been and to demonstrate that his suffering had reached the threshold of severity bringing the matter within the ambit of Article 3 of the Convention. The applicant failed to comment on the Government's objection and possibly develop his arguments by providing more details in respect of the present complaint. Lastly, the Court cannot but observe that in his complaint to the Kirovograd regional prosecutor's office of 12 October 2015 concerning the lack of medical care in detention the applicant's lawyer did not mention that the conditions of the applicant's detention in a disciplinary cell had been inadequate (see paragraph 17 above).

30. On the whole, the Court finds that the above matters, as raised by the applicant in this part of the application, do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

31. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

32. The complaint about the lack of adequate medical treatment in detention is on the contrary not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Noting also that it is not inadmissible on any other grounds, the Court declares it admissible.

B. Merits

33. The Government submitted that the applicant's health when in penal institutions had been under close medical supervision and that he had been provided with proper and adequate medical care within both penal institutions and civilian hospitals. They further stressed that the delays in providing the applicant with medical treatment had been due to his refusal to be transferred to the hospital on 12 February 2016.

34. The Court has emphasised on a number of occasions that a lack of appropriate medical care in detention may amount to treatment contrary to Article 3 of the Convention (see, among many other authorities, Hummatov v. Azerbaijan , nos. 9852/03and 13413/04, §§ 112-22, 29 November 2007; Ukhan , cited above, §§ 77-83; and Petukhov v. Ukraine , no. 43374/02, §§ 91-98, 21 October 2010).

35. Other relevant principles determined by the Court in its case-law as regards Article 3 of the Convention and in respect of medical treatment in detention are summarised in the case of Sergey Antonov v. Ukraine (no. 40512/13, §§ 70-75, 22 October 2015).

36. Turning to the circumstances of the present case, the Court notes at the outset that the medical condition the applicant suffered from (see paragraph 6 above) was serious enough to affect his everyday functioning. Therefore he could have experienced considerable anxiety as to whether the medical care provided to him was adequate.

37. The Court notes that it took the authorities four months to prescribe the applicant dietary treatment (see paragraph 8 above). It then took them another month and a half to prescribe him outpatient treatment consisting of medicine (see paragraph 9 above).

38. In the light of the above, the Court considers that the applicant's medical condition did not receive an adequate and timely response from the domestic authorities for more than five months. It does not appear from the available material that a reasonable effort was made to deal with the said condition during that time.

39. The Court further observes that in October 2015 he was recommended elective surgery for his chronic calculous cholecystitis (see paragraph 18 above). However, apparently the surgery was not performed while the Government has not provided any explanation for that failure. Similarly, the Government did not provide any explanation concerning the failure to carry out the applicant's examination in connection with chronic gastroduodenitis (see paragraph 10 above).

40. The Court if mindful of the fact that the prison service requested the applicant's hospitalisation for the surgery in November 2015, and that it was refused in December 2015 owing to the lack of available places in a hospital (see paragraph 19 above). It is also true that in February 2016 the prison service attempted again to arrange the applicant's placement in the SIZOs' hospitals, which he refused. This refusal, however, was followed by the applicant's consent, given on the same day, to placement in any other medical institution for surgery (see paragraph 21 above). It appears from the Government's submissions that no further attempts to arrange the surgery have been taken.

41. The Court further notes that in April 2016 the applicant's state of health again deteriorated (see paragraph 22 above). It remains, however, unknown what actions, if any, were taken by the authorities in response.

42. In the light of the foregoing, the Court considers that the authorities' unjustified delays in providing the applicant with medical treatment as soon as his medical condition was established, their failure to secure his placement in a hospital for surgery and the subsequent deterioration of his health are sufficient indications of a serious failing on the part of the respondent State to provide him with the appropriate medical care while in detention, which amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

43. The applicant complained that he had not had at his disposal an effective domestic remedy for his complaints in respect of alleged inadequate medical treatment 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 this 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

44. The Court finds that this complaint is not manifestly ill-founded or indeed inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

45. The Government submitted, without providing further comment, that the applicant had had an effective domestic remedy in respect of alleged inadequate medical treatment.

46. The Court reiterates that it has already found a violation of Article 13 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning the lack of medical treatment (see, among other authorities, Sergey Antonov , cited above, § 96, with further references). It sees no reason to decide otherwise in the present case.

47. The Court therefore concludes 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 under Article 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

48. 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."

49. The applicant did not submit claims for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 3 of the Convention concerning the alleged lack of access to adequate medical treatment in detention and the complaint under article 13 concerning the lack of effective domestic remedies in respect of this complaint admissible;

 

2. Declares the remainder of the application inadmissible;

 

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

 

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

Done in English, and notified in writing on 29 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Georges Ravarani
              Deputy Registrar President