TEMCHENKO v. UKRAINE - 30579/10 - Chamber Judgment [2015] ECHR 692 (16 July 2015)

In the case of Temchenko v. Ukraine,

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

       Angelika Nußberger, President,
       Boštjan M. Zupančič,
       Ganna Yudkivska,
       Vincent A. De Gaetano,
       André Potocki,
       Helena Jäderblom,
       Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 23 June 2015,

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

PROCEDURE

1. The case originated in an application (no. 30579/10) 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 Anatoliy Georgiyevich Temchenko (“the applicant”), on 21 May 2010.

2. The applicant was represented by Ms A. Mukanova and Mr M. Tarahkalo, lawyers practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice.

3. On 8 December 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1942 and lives in Kryvyy Rig. Before his arrest he was rector of a State-owned university.

5. On 23 September 2009 the applicant was medically examined. An endocrinologist noted that he had type-2 diabetes and prescribed insulin injections. The endocrinologist advised that commencement and adjustment of the insulin treatment should take place on an in-patient basis in a local hospital.

A. The applicant’s detention and the criminal proceedings against him

1. The applicant’s arrest and the criminal proceedings

6. On 29 September 2009 an investigator from the Dnipropetrovsk Regional Prosecutor’s Office arrested the applicant on suspicion of having received bribes in his capacity as university rector. He was detained in the temporary detention facility of Kryvyy Rig (“the ITT”).

7. On 2 October 2009 the Dzerzhynskyy District Court of Kryvyy Rig (“the District Court”) ordered the applicant’s detention for three months, stating, without referring to any concrete facts, that he might abscond, hinder the investigation or continue his criminal activities. The court also noted that there was evidence in support of the prosecutors’ suspicion that the applicant had received bribes.

8. On 5 October 2009 the applicant was transported to the Kryvyy Rig remand centre (“the SIZO”).

9. On 7 October 2009 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) upheld the above decision. The court noted, without providing further details, that the case file contained evidence that the applicant had attempted to hinder the investigation, and medical documents indicating that he was physically fit for detention. No further information about the said evidence and documents was made available to the Court.

10. On 18 November 2009 the District Court extended the applicant’s detention to 29 January 2010, relying on the same grounds as in its previous decision.

11. On 25 November 2009 the Court of Appeal upheld that decision. Referring to unspecified medical documents, it again noted that the applicant was physically fit for detention.

12. On 29 January 2010 the investigation in the applicant’s case was completed and the case was referred to the District Court for trial.

13. In a preliminary hearing on 9 March 2010, the District Court ruled that the preventive measure in respect of the applicant had to be maintained as there were no reasons to change it. The court did not fix the length of the applicant’s detention.

14. In a judgment of 23 May 2011, the District Court sentenced the applicant to five years and two months’ imprisonment for bribery. On 5 October 2011 the Dnipropetrovsk Regional Court of Appeal modified that judgment and sentenced the applicant to five years’ suspended imprisonment with a probationary period of three years. On the same date the applicant was released from the SIZO. The judgment became final.

15. In the course of the criminal proceedings the applicant took part in fifty court hearings and in a number of investigative actions.

2. The applicant’s requests for release

16. In a written request for release, the applicant stated that his state of health was incompatible with detention and that, as he no longer held the post of rector, he could not hinder the investigation. On 31 May 2010 he submitted his request to the SIZO administration asking them to send it to the District Court for examination. On 2 June 2010 the SIZO administration duly forwarded the request. On 7 June 2010 the District Court rejected the request, holding that if he were freed, the applicant could influence witnesses. It continued:

“... In so far as the applicant’s health is concerned, it appears from the medical certificates provided by the SIZO and municipal hospital no. 8 that the applicant is being provided with medical treatment. Therefore, the court finds no reason to change the applicant’s preventive measure.”

17. The court did not refer to any concrete facts supporting its finding that the applicant could influence witnesses. Nor did it examine the adequacy of the medical treatment provided to him. No details of the “medical certificates” to which the District Court referred were made available to the Court.

18. On an unspecified date, the applicant wrote another request for release against an undertaking not to abscond. He argued that during his detention his state of health had deteriorated as a result of the inadequate medical treatment provided to him in the SIZO. He also argued that the conditions of his transportation to court hearings had been inappropriate given his state of health. In particular, due to the insufficient ventilation in the van transporting him, his blood pressure had risen and he had had difficulty breathing. It remains unknown when this request was submitted to the District Court.

19. On 17 June 2010 the District Court examined and rejected the applicant’s request, stating:

“... the applicant could influence witnesses and thus hinder the investigation ... Where necessary the applicant has received medical aid in the SIZO.”

20. On 6 August 2010, 21 and 22 February 2011, the applicant submitted further requests for release, either against an undertaking not to abscond or on bail. Relying on the findings of forensic medical examinations carried out on 12 November 2010 and 28 January 2011 (see paragraphs 62-66 below), he argued that the treatment provided to him during his detention had not been adequate and that he needed in-patient treatment in a specialist medical institution. That kind of treatment could not be provided to him in the SIZO.

21. On 28 March 2011 the District Court rejected those requests. The court based its decision on the findings of the forensic examination of 28 January 2011, noting that the applicant’s diseases were of a chronic nature and could last for a long time. The court also stated:

“If necessary the applicant can be transported to court hearings in an ambulance accompanied by a doctor”.

...

“From the medical certificates issued by the SIZO and the certificate issued by hospital no. 9 on 25 March 2011, it follows that when necessary the applicant receives medical aid in the SIZO and in municipal hospitals. The applicant may influence witnesses”.

No details of the “medical certificates” to which the District Court referred were made available to the Court.

22. On 7 April 2011 the applicant submitted another request for release, advancing the same arguments as in his requests of 6 August 2010, 21 and 22 February 2011.

23. On 28 April 2011 the District Court rejected the applicant’s request, essentially relying on the same grounds as in its decision of 28 March 2011.

3. The applicant’s detention from 29 January to 9 March 2010

24. On 9 March and 7 June 2010 the District Court examined the applicant’s complaint that his detention from 29 January to 9 March 2010 had been unlawful and rejected it as unsubstantiated. The court found that, although that period of detention had not been covered by any court decision, the detention had been justified because the applicant had been awaiting committal for trial.

B. Medical assistance provided to the applicant in detention

25. On 5 October 2009 the doctor who had examined the applicant upon his arrival at the SIZO decided, in view of the applicant’s abnormally high blood pressure, to place him in the cardiology department of a municipal hospital. On the same date the applicant was taken to municipal hospital no. 3, which had cardiology and endocrinology departments.

26. The applicant was diagnosed with ischemic heart disease, stenocardia, hypertensive diseases (stage II), chronic cholecystitis (remission stage) and pancreatitis (remission stage), type-2 subcompensated diabetes of medium severity, kidney cyst, prostate adenoma, and chronic pielonefritis (remission stage).

27. The applicant was discharged from the hospital on 27 October 2009. He was recommended constant monitoring by a doctor and prescribed various medications, including an oral medication to lower his sugar level (Gliclazide).

28. On the same date the applicant was returned to the SIZO medical unit, which was tasked with providing primary medical aid to SIZO detainees and did not have the equipment and staff to provide specialist medical treatment and assistance. The unit’s medical staff included two nurses, two feldshers (paramedics), a doctor, a psychologist and a gynaecologist.

29. On 11 February and 9 March 2010 the SIZO medical unit informed the applicant’s lawyer that, according to the results of medical tests, the applicant’s diabetes and kidney pathology warranted in-patient examination in a specialist medical institution. However, no further steps were undertaken in this respect.

30. On 24 March 2010 an endocrinologist from hospital no. 3 studied the results of the applicant’s sugar-level tests and recommended that he start insulin injections on 9 April 2010.

31. On 1 and 6 April 2010 the applicant was transported to municipal hospitals nos. 3 and 8 respectively, where he was examined by surgeons. On the latter date the applicant was diagnosed with chronic pancreatitis. After the examinations, which lasted for several hours, the applicant returned to the SIZO.

32. On 9 April 2010 an endocrinologist from hospital no. 3 confirmed the insulin prescription and recommended regular sugar-level tests. From that date onwards the applicant received insulin injections and did not raise any objection in that respect. He bought the insulin in the SIZO pharmacy, while the insulin syringes were sent to him by his relatives.

33. In a letter of 15 April 2010 addressed to the applicant’s lawyer, the SIZO medical unit stated that the applicant’s condition during his detention was of medium severity and unstable.

34. On 13 May 2010 the applicant complained to the SIZO medical staff of a sudden deterioration in his health. The medical staff noted that his pancreatitis had worsened and that there had been a significant rise in his sugar level. They called an ambulance to take him to hospital no. 8, which, however, did not have specialist endocrinology or cardiology departments. The applicant was placed in the intensive-care department, underwent a number of medical tests and was examined by an urologist, a neuropathologist, a cardiologist and an endocrinologist. He received treatment in connection with his diabetes and pancreatitis. The doctors established that his state of health had deteriorated since October 2009 and his general condition was serious.

35. On 21 May 2010 the applicant was discharged from the hospital and transported back to the SIZO medical unit.

36. In the applicant’s discharge note the hospital doctors recommended that he be monitored by an endocrinologist and that his sugar level be regularly measured. His diabetes treatment was modified and he was prescribed a special diet - so-called “fractional nutrition”.

37. On three occasions between 27 May and 8 June 2010 a SIZO doctor raised the dose of insulin administered to the applicant. According to the Government, the dosage was raised on the advice of an endocrinologist. The applicant disagreed.

38. On 2 June 2010 the SIZO medical unit informed the applicant’s lawyer that it did not have sufficient equipment and staff to provide the applicant with adequate insulin treatment, which could only be administered on an in-patient basis in a specialist medical institution.

39. On the same date the head of the SIZO medical unit informed the judge dealing with the applicant’s criminal case that it was impossible to provide the applicant with adequate medical treatment in the SIZO. He noted that the applicant’s condition warranted comprehensive in-patient treatment in an outside medical institution and asked the judge to consider changing the applicant’s preventive measure. He also noted that further modification of the insulin dosage in the SIZO “without the endocrinologist’s supervision might lead to undesired results”. The judge did not react to that information.

40. On 16 June and 2 July 2010 the applicant requested that the Court, under the Rule 39 of the Rules of Court, oblige Ukraine to transfer him to a specialist hospital, where he could receive adequate medical care. He alleged that as a consequence of that request, the SIZO medical staff stopped registering his complaints and providing him with any medical assistance. The Government contested the applicant’s allegation. On 30 July 2010 the Court refused the applicant’s request.

41. On 13 July 2010 an endocrinologist examined the applicant in the SIZO, confirmed his previous diagnosis and adjusted his treatment.

42. On 20 July 2010 the applicant was examined by an urologist and an oculist in hospital no. 8. He underwent a kidney ultrasonic examination and was diagnosed with retinal angiopathy. On the same date he returned to the SIZO.

43. On 28 January 2011 the applicant was examined in the SIZO medical unit by an endocrinologist, a cardiologist and a urologist from municipal hospitals.

44. On 30 January 2011 the SIZO administration requested hospital no. 8 to assess whether the applicant needed in-patient treatment. The hospital did not reply, and the SIZO administration did not follow up on the request.

45. From 1 March 2011 onwards the SIZO medical unit had no doctors among its staff.

46. On 16 March 2011, following a new request submitted by the applicant under Rule 39, the Court decided that the Government should “ensure that the applicant received treatment in the specialised institutions referred to in the report of 28 January 2011” (see paragraphs 63-66 below). On 17 March 2011 the Court informed the Government of its decision.

47. On 18 March 2011 the applicant was taken by ambulance to hospital no. 8, where he remained until 19 March 2011. The Government submitted that the applicant’s hospitalisation had been based on the Court’s decision of 16 March 2011. The applicant challenged that statement and submitted that he had been hospitalised solely because of a sudden deterioration in his health, which the SIZO staff had been unable to deal with.

48. On 19 March 2011 the applicant was transferred to the cardiology department of hospital no. 9, which had an endocrinologist on its staff.

49. During his stay at the hospitals, the applicant was advised to undergo a coronography (heart examination) as soon as possible.

50. On 26 March 2011 the applicant was discharged, the hospital doctors having noted an improvement in his state of health. He returned to the SIZO medical unit.

51. The SIZO administration proposed that the applicant undergo the coronography at any of the hospitals in Kryvyy Rig and receive treatment for diabetes in the endocrinology department of hospital no. 3 in Kryvyy Rig. The applicant refused, maintaining that he did not trust the Kryvyy Rig doctors. He would only agree to be taken to the Strazhesko Cardiology Institute in Kyiv.

52. On 8 April 2011 the applicant was examined in the SIZO by an endocrinologist from hospital no. 3 and his treatment for diabetes was modified.

53. On 15 April 2011 the governor of the SIZO informed the judge dealing with the criminal case against the applicant that the latter’s condition was of medium severity and unstable. He asked the judge to consider changing the applicant’s preventive measure, in particular, in view of his age and state of health. The judge did not react to that request.

54. On 19 April 2011 the SIZO administration asked the judge to allow the applicant to be moved to the Strazhesko Cardiology Institute in Kyiv. On 6 June 2011 the judge granted the request.

55. In the meantime, on 21 April 2011, the applicant was urgently taken to the endocrinology department of hospital no. 8 because of a sudden deterioration in his health. He remained in the hospital until 27 April 2011 and received treatment for diabetes.

56. On 10 July 2011 the applicant was transported to Kyiv by train.

57. Between 11 and 22 July 2011 the doctors of the Strazhesko Cardiology Institute in Kyiv examined the applicant and prescribed non-urgent heart surgery. In addition to the diseases previously noted by other doctors, the applicant was diagnosed with poliposis of the stomach and sigmoid colon, stomach polipantruma, repeated Q-wave infarction of the posterior wall of the left ventricular valve of the heart, atherosclerosis of the coronary arteries, mitral valve regurgitation, tricuspid valve regurgitation, atrioventricular valve regurgitation and atherosclerotic cerebrovascular insufficiency.

58. On 30 July 2011 the applicant returned to the Kryvyy Rig SIZO medical unit.

59. While the applicant remained in detention, his wife and lawyer submitted several requests to the authorities seeking his move to a specialist hospital instead of the SIZO. The SIZO administration replied that the applicant was receiving adequate treatment in the SIZO and occasionally in municipal hospitals, and that his health condition did not require specialist in-patient treatment in an outside medical institution.

60. The applicant lodged a number of complaints with the prosecutors stating that he had not been provided with adequate medical assistance in detention. The prosecutors rejected his complaints as unsubstantiated. The applicant did not challenge the prosecutors’ decisions before the courts.

61. According to the applicant, he was handcuffed to his bed at all times during his stays in municipal hospitals. He did not raise any complaint in this connection before the national authorities and did not provide any evidence in that regard. The Government denied that the applicant had been handcuffed.

C. Forensic medical examinations of the applicant

62. On 12 November 2010, following a request from the applicant’s lawyer and having studied the applicant’s medical records provided by the latter, a committee of medical experts from the Central Bureau for Forensic Examinations based in Kyiv drew up a report on the applicant’s state of health. It found that as a result of the inadequate medical treatment provided to him during his pre-trial detention, his condition had deteriorated. It stated, in particular, that the applicant’s hypertension had been exacerbated and the type-2 diabetes had reached the stage of decompensation. The experts noted that the gravity of the applicant’s condition warranted in-patient treatment in specialist endocrinology and cardiology hospitals, such as the Strazhesko Cardiology Institute in Kyiv. The experts also expressed the opinion that the applicant risked developing a brain haemorrhage and aortic dissection if he was not provided with appropriate treatment. It was recommended that he be transported in an ambulance accompanied by a doctor.

63. On 23 November 2010 the District Court, following a prosecutor’s request, ordered a committee of medical experts from the Dnipropetrovsk Bureau for Forensic Examinations to assess whether the applicant was physically fit for transportation and participation in court hearings.

64. The medical experts decided that, in view of the instability of the applicant’s condition, it was not necessary to examine him in person. They assessed the applicant’s condition on the basis of his medical file provided by the SIZO. In their report of 28 January 2011 the experts concluded that the applicant’s condition was grave, highly unstable and unpredictable, he was prone to sudden deterioration in his health, which could be fatal if it occurred during transportation in a vehicle without appropriate medical equipment. The applicant’s transportation was thus found to be “undesirable”. However, if it was strictly necessary for the court to contact the applicant, the experts recommended transporting him in a special cardiac ambulance accompanied by a doctor.

65. The experts found that the applicant’s condition had deteriorated while in detention as a result of the inadequate and incomprehensive medical treatment provided to him during that period. If not provided with appropriate in-patient treatment at a specialist medical institution - the experts referred to the Strazhesko Cardiology Institute as an example of such an institution - the applicant risked developing potentially fatal complications, such as cardiac arrest, brain haemorrhage or aortic dissection.

66. The report of 28 January 2011 contains the statement that “... the applicant’s diseases are of a chronic nature, and may last for a lengthy period of time”.

67. On 8 June 2011, following a request from the applicant’s wife, a committee of medical experts from the Central Bureau for Forensic Examinations studied the applicant’s medical records and found that since 12 November 2010 his health had deteriorated and that his condition warranted comprehensive in-patient treatment in a specialist hospital, in particular the Strazhesko Cardiology Institute. Without such treatment the applicant risked developing life-threatening conditions such as a brain haemorrhage and aortic dissection. The experts mentioned that, in view of the instability of the applicant’s condition, his transportation would be potentially fatal. The applicant’s short-term hospitalisations had not constituted appropriate in-patient treatment in the applicant’s case because they had been aimed only at stabilising sudden deteriorations in his condition and had not formed part of a comprehensive treatment.

68. The results of the above forensic examinations were submitted to the District Court.

D. Provision of the medical records to the applicant, his wife and lawyer

69. The applicant claimed that on 29 June 2010 his wife had asked the SIZO administration to send her his medical records. The SIZO administration had not responded to her request. The Government stated that the SIZO administration had not received such a request. A copy of the request which the applicant submitted to the Court bears no evidence that it was received by the SIZO.

70. On 4 and 11 August and 22 November 2010, 10 and 31 March 2011 respectively, the applicant’s wife submitted further requests to the SIZO administration asking them to send her the applicant’s medical records. The SIZO sent her the records on 18 August and 29 November 2010, 29 March and 6 April 2011, respectively.

71. On 31 March 2011, following a request from the applicant’s lawyer, hospital no. 9 provided the lawyer with a copy of the applicant’s medical records. According to the applicant, all the medical records provided to his wife and lawyer were incomplete and contained false information.

E. Conditions of the applicant’s detention in the SIZO and his transportation

1. Conditions of detention in the SIZO

72. According to the applicant, the window in his cell in the SIZO “had no glass in it”, which resulted in “dampness and air temperature fluctuations”. The food provided by the SIZO was of poor quality. The applicant did not provide further details in that regard.

73. The special diet (“fractional nutrition”) prescribed to the applicant was not available in the SIZO and was provided to him by his relatives two or three times a week.

74. On 26 August 2011 the Government examined the two cells in which the applicant had been held in the SIZO. They submitted that the windows in the cells were double glazed and measured 110 by 130 cm. The temperature in the cells was 20°C and the humidity was 56%. The Government acknowledged that the SIZO had not provided the “fractional nutrition” to the applicant. According to them, he had received it from his relatives and had been able to follow the prescribed diet.

2. Conditions of transportation

75. From 29 September to 5 October 2009 and from 9 March 2010 to 1 February 2011 - on twenty-six occasions in total - the applicant was transported in a van used for the transportation of healthy detainees. Between 5 October 2009 and 9 March 2010 he was once transported in a police car.

76. Between 18 April 2011 and 22 September 2011 the applicant was transported in an ambulance accompanied by a doctor (nineteen times in total). The exact duration of the trips remains unknown; the applicant stated that sometimes his transportation had lasted for up to three hours.

77. The above-mentioned van had metal walls and one small window. According to the applicant, it was not sufficiently ventilated and had no heating system, so it was too cold in winter and too hot in summer. It does not appear from the applicant’s submissions that he was transported with other inmates. The Government argued that the van had had sufficient ventilation and the conditions of the applicant’s transportation had been adequate.

78. The applicant submitted that the train carriage in which he had been transported to Kyiv had not been fit for transportation of a person in his condition. The Government maintained that the conditions in the train carriage were adequate. The parties did not provide any further details in this regard.

79. On 5 July 2011 the prosecutor rejected the applicant’s complaint concerning the inappropriate conditions of his transportation in the train. The applicant did not challenge that decision before the courts.

II. RELEVANT DOMESTIC LAW AND PRACTICE

80. The relevant provisions of the Civil Code and the Law “on the Procedure for the Compensation of Damage Caused to Citizens by the Unlawful Actions of Bodies of Inquiry, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”) are summarised in Ratushna v. Ukraine, no. 17318/06, §§ 43-44, 2 December 2010, with further references.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

A. Alleged lack of adequate medical assistance in detention and absence of domestic remedies in that respect

81. The applicant complained, under Articles 2 and 3 of the Convention, that he had not been provided with adequate medical assistance and treatment during his detention. He also complained, under Article 13 of the Convention, that he had not had an effective remedy for his complaint under Article 3. The Court is master of the characterisation to be given in law to the facts of the case. As such, it considers that the above complaints fall to be examined under Articles 3 and 13 of the Convention, which read as follows:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

1. Admissibility

82. The Government contended that the applicant had not exhausted domestic remedies because he had not raised the above complaints before the domestic courts in the framework of separate judicial proceedings.

83. The Court notes that it has rejected the Government’s similar objections in a number of other cases concerning Ukraine (see, for example, Koktysh v. Ukraine, no. 43707/07, § 87, 10 December 2009, Visloguzov v. Ukraine, no. 32362/02, § 64, 20 May 2010). The Government provided no information which would enable the Court in the present case to depart from its findings and therefore it considers that this part of the application cannot be declared inadmissible for non-exhaustion of domestic remedies. Nor can it be rejected as inadmissible on any other grounds. It should therefore be declared admissible.

2. Merits

(a) Article 3

84. The Government submitted that the deterioration of the applicant’s health during detention had been natural given his numerous diseases and the mental stress inherent in detention and participation in the criminal proceedings. After having been admitted to the SIZO, the applicant had been under constant medical monitoring and had been provided with adequate treatment, both in the SIZO medical unit and in the local hospitals.

85. The applicant submitted that his medical check-ups by specialist doctors had not been carried out at reasonable intervals and his monitoring and treatment had lacked consistency. He stated that the deterioration of his health during detention proved that the treatment provided to him had not been adequate. His state of health had been incompatible with the conditions of detention in the SIZO and adequate treatment should have included in-patient treatment at a specialist hospital. He also complained that in the SIZO he was not provided with insulin and insulin syringes free of charge.

86. The Court notes that the general principles applicable in the field of medical assistance to be provided to detainees were summarised in Kharchenko v. Ukraine (no. 40107/02, §§ 58-59, 10 February 2011).

87. In the present case the authorities were aware of the applicant’s poor state of health and took certain measures in this respect. In particular, on a number of occasions the applicant was examined by the medical staff of the SIZO and by civilian doctors. He underwent medical treatment inside and outside the SIZO. The Court notes that the Government’s submissions concerning the causes of the applicant’s health deterioration are not devoid of substance.

88. In these circumstances, the Court will examine whether the State complied with its obligation to safeguard the applicant’s health in detention.

89. Firstly, the Court observes that the domestic medical experts (see paragraphs 62, 64-67 above), in their reports of 12 November 2010, 28 January and 8 June 2011, explicitly stated that the medical treatment provided to the applicant during his detention had been inadequate. The Court sees no reason to put their findings in doubt. Moreover, on 2 June 2010 the SIZO itself acknowledged its inability to provide the applicant with the appropriate treatment in detention (see paragraphs 38-39 above).

90. Secondly, on 11 February, 9 March and 2 June 2010 respectively, the SIZO doctors established that the applicant needed to undergo a specialist medical examination and treatment on an in-patient basis at an outside medical institution. However, no measures were taken by the authorities to arrange this in a timely manner (see paragraphs 29 and 38 above). In fact, it was only after application of Rule 39 by the Court that the applicant was placed in an outside medical institution for an in-patient examination.

91. Thirdly, the courts’ findings that the applicant’s state of health was compatible with detention lacked sufficient reasoning. In particular, the courts dealing with the applicant’s requests for release did not refute any of the medical findings that the treatment provided to the applicant had been inadequate and that appropriate treatment could not be provided in the SIZO. It appears that the courts were satisfied that in detention the applicant received some medical treatment and did not even attempt to examine whether it had been adequate (see paragraphs 17, 19, 21-23 above).

92. Lastly, from the medical expert reports of 12 November 2010 and 28 January 2011, it appears that transporting the applicant in a vehicle without specific medical equipment was dangerous for his health and even potentially fatal (see paragraphs 62-64 above). It has not been suggested that the van and the train carriage in which he was transported had any such equipment. The Court further observes that despite the fact that the authorities were fully aware of the applicant’s poor state of health as from 5 October 2009, the District Court did not order an assessment of the applicant’s fitness for transportation until the end of 2010.

93. The Court considers that the above findings are sufficient to conclude that the State failed to comply with its obligations under Article 3 of the Convention. There has accordingly been a violation of that provision.

(b) Article 13

94. The Court, having regard to its conclusions as to the exhaustion of domestic remedies (see paragraph 83 above) and also to the lack of thorough examination by the domestic courts of the applicant’s complaints, considers that the applicant had no effective remedy in respect of his allegations of inadequate medical assistance in detention. Accordingly, there has been a violation of Article 13 of the Convention.

B. Allegedly inappropriate detention and transportation conditions and lack of remedies in that respect

95. The applicant complained of the inadequate conditions of his detention in the SIZO medical unit, in particular, the lack of glass in the window of his cell and the quality of the food provided by the SIZO. He also complained that the conditions of his transportation amounted to a violation of Article 3 of the Convention because he was not transported in medically equipped vehicles. He also complained under Article 13 of the Convention that he had not had an effective remedy in that respect. The applicant also complained that he had been constantly handcuffed while in the municipal hospitals.

96. The Government submitted that the van which transported the applicant had allowed the circulation of fresh air and that the conditions of the applicant’s transportation had been appropriate. The guards escorting the applicant on the train had been informed that they should take measures in connection with the applicant’s poor state of health.

97. The Court observes that the applicant submitted no documentary evidence enabling the Court to establish the truthfulness of his allegations concerning the material conditions in the SIZO. Although in cases concerning complaints about detention conditions the Court has not always required that an applicant support each and every allegation with particular documents, recognising that relevant information and possibilities to investigate the facts in such cases lie primarily in the hands of the authorities, in order for the Court 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 example, Trepashkin v. Russia, no. 36898/03, § 85, 19 July 2007). In the Court’s opinion, this requirement has not been met in the present case, as the applicant’s account of the facts was not detailed enough to make the nature and extent of his sufferings apparent and to show whether the ill-treatment complained of had reached the threshold of severity bringing the matter within the ambit of Article 3 of the Convention. The Court finds therefore that the applicant has not made out an arguable claim concerning the material conditions of his detention in the SIZO. The Court also notes that the applicant’s allegations concerning his handcuffing while in hospital are not supported by any evidence and thus lack substantiation.

98. The Court does not consider that the conditions of the applicant’s transportation as such were incompatible with the requirements of Article 3 of the Convention. As far as the applicant complained that he had not been transported in medically equipped vehicles, this complaint is addressed in finding a violation of Article 3 concerning inadequacy of medical treatment. Accordingly, there is no arguable claim under Article 13 of the Convention.

99. In view of the above the Court finds that the present part of application is manifestly ill-founded and must be rejected 35 §§ 3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

A. The applicant’s complaints under Article 5 § 1 (c) of the Convention

100. The applicant complained that his detention from 29 January to 9 March 2010 had not been covered by any court decision.

101. He also complained that from 9 March 2010 to 23 May 2011 his detention had been unlawful because the court decision of 9 March 2010 had not contained any reasons for his detention or fixed any time-limit for it. The applicant also complained that the national legislation did not allow the courts ordering or extending his pre-trial detention to examine whether there was a “reasonable” suspicion to keep him in detention.

102. The applicant relied on Article 5 § 1 (c) of the Convention, which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

1. Admissibility

103. The Court considers that the complaint about failure to examine whether there was a “reasonable” suspicion is unsubstantiated because the courts examined that issue (see paragraph 7 above). Therefore this part of the complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

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

2. Merits

105. The Government submitted, without referring to any particular legislative provision, that the applicant’s detention had been in line with national legislation and his complaints were unsubstantiated.

106. The applicant disagreed.

107. The Court notes that between 29 January and 9 March 2010 the applicant’s detention was not covered by any court decision and was justified merely by the fact that the applicant was awaiting committal for trial. The Court has previously found that such practice was not compatible with the principles of legal certainty and protection from arbitrariness (see Kharchenko, cited above, §§ 71-72 and 98). It sees no reason to depart from that finding in the present case. Accordingly, the Court concludes that the applicant’s detention between 29 January and 9 March 2010 was not lawful.

108. The Court has also previously examined cases against Ukraine where the courts failed to give reasons for their decisions authorising detention pending trial or to fix a time-limit for such detention. In Kharchenko (cited above, §§ 73-76 and 98) the Court held that such practice constituted a recurrent structural problem in Ukraine. There are no convincing arguments in this case capable of persuading the Court to reach a different conclusion.

109. There has accordingly also been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant’s detention from 29 January 2010 to 23 May 2011.

B. The applicant’s complaint under Article 5 § 3 of the Convention

110. The applicant complained that the overall length of his pre-trial detention had not been justified. He referred to Article 5 § 3 of the Convention, which provides, in so far as relevant, as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

1. Admissibility

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

2. Merits

112. The Government submitted that there had been sufficient grounds for the applicant’s detention and that the authorities had been diligent in dealing with his case.

113. The applicant disagreed.

114. As the Court has held in its case-law on many occasions, the reasonableness of a period of detention is never assessed in abstracto. In other words, Article 5 § 3 of the Convention cannot be seen as authorising pre-trial detention unconditionally, provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see, for example, Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I). The Court emphasises that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV).

115. Turning to the present case, the Court observes that the period to be taken into account commenced on 29 September 2009 and ended on 23 May 2011; thus it lasted for about one year and eight months. It is of the opinion that, in view of the applicant’s age, state of health and the fact that he was accused of a non-violent crime, this period cannot be considered short.

116. The Court further observes that the applicant’s initial detention was based on the seriousness of the charges brought against him and on other reasons, such as the likelihood of his absconding and hindering the investigation. Although the applicant’s detention may have initially been justified on those grounds, after a certain amount of time had passed the courts were obliged to give more explicit reasons for the continued detention (see Gavula v. Ukraine, no. 52652/07, §§ 89-90, 16 May 2013). However, they repeatedly relied on the same grounds without giving any particular details. In particular, they did not explain in what way the applicant could influence witnesses and hinder the investigation. The Court further notes that the applicant’s arguments based on the alleged inadequacy of the medical treatment he had received in the SIZO were not duly addressed either (see paragraph 91 above).

117. The Court has frequently found violations of Article 5 § 3 of the Convention in similar circumstances (see, among many other authorities, Doronin v. Ukraine, no. 16505/02, §§ 63-64, 19 February 2009, and Kharchenko, cited above, §§ 79-81, 99 and 101). It considers that the Government have not put forward any facts or convincing arguments capable of persuading it to reach a different conclusion in the present case. There has accordingly been a breach of Article 5 § 3 of the Convention.

C. The applicant’s complaints under Article 5 § 4 of the Convention

118. The applicant complained that the time taken by the District Court to consider his request for release of 31 May 2010 had been excessive. He invoked Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

1. Admissibility

119. The Government maintained that the time taken to consider the applicant’s request in itself had not been excessive.

120. The applicant disagreed.

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

2. Merits

122. Article 5 § 4 of the Convention, while guaranteeing to persons arrested or detained the right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention (see Kadem v. Malta, no. 55263/00, § 43, 9 January 2003). The question whether a person’s right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case.

123. The Court considers that the applicant’s state of health and the unavailability of adequate medical treatment in detention, acknowledged by the SIZO on 2 June 2010 (see paragraphs 38-39 above), warranted an urgent examination of his requests for release. The request of 31 May 2010 was processed in seven days. This period in itself does not appear to be lengthy and the Court does not exclude that it could have accepted the Government’s position had it been established that the applicant had had access to adequate medical treatment while in detention. However, in view of the above findings under Article 3 of the Convention, the Court considers that the authorities did not demonstrate sufficient expedition in dealing with the request. They thus failed to comply with the “speediness” requirement of Article 5 § 4. The Court therefore finds that there was a violation of that provision.

D. The applicant’s complaint under Article 5 § 5 of the Convention

124. The applicant complained, under Article 5 § 5 of the Convention, that there had been no effective domestic remedy for the above complaints under Article 5 of the Convention. Article 5 § 5 reads as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

1. Admissibility

125. The Government contended that the applicant could have claimed compensation for unlawful detention under Article 1176 of the Civil Code in force since 1 January 2004 and the Compensation Act. As he had not availed himself of that opportunity, the applicant had not exhausted the domestic remedies available to him.

126. The applicant disagreed.

127. The Court notes that the Government’s objection is closely linked to the merits of the applicant’s complaint. It therefore joins it to the merits.

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

2. Merits

129. The Court reiterates that Article 5 § 5 has been complied with where it is possible to apply for compensation in respect of deprivation of liberty effected in conditions contrary to paragraphs 1, 3 or 4 (see Stoichkov v. Bulgaria, no. 9808/02, § 72, 24 March 2005). The right to compensation set forth in paragraph 5 presupposes therefore that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court.

130. In the present case the Court has found a violation of Article 5 §§ 1, 3 and 4 of the Convention. It follows that Article 5 § 5 is applicable. The Court observes that there is no indication that the national law conferred on the applicant a right to compensation in his situation (see Korneykova v. Ukraine, no. 39884/05, § 80, 19 January 2012). The Government provided no information which would enable the Court to depart from its findings in Korneykova, cited above.

131. The Court thus rejects the Government’s objection (see § 125 above) and finds that there has therefore been a violation of Article 5 § 5 of the Convention.

III. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION

A. The applicant’s inability to choose his treatment and doctors, and the lack of domestic remedies in that respect

132. The applicant complained, under Article 8 of the Convention, that medical treatment had been prescribed to him without his consent, and he was not allowed to choose alternative treatment or be examined by independent doctors. He also complained under Article 13 of a lack of effective remedies in that respect. Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

133. The Government maintained that the applicant had failed to demonstrate that his requests for medical information had ever been refused.

134. The Court considers that the present complaints are closely linked to the issue of medical assistance under Article 3 of the Convention and are likewise admissible. However, as they are absorbed by the wider issue of whether the medical assistance provided to the applicant during his detention was adequate (see §§ 84-93 above), the Court sees no reason to rule on their merits separately.

B. Complaint about refusal to provide copies of medical records

135. The applicant complained that the SIZO had ignored his wife’s request of 29 June 2010 to be provided with his medical records. He also alleged that the copies of the medical records provided by the SIZO to his wife and lawyer contained untrue and incomplete information.

136. The Court notes that the applicant did not prove that his wife indeed lodged the said request with the SIZO, he also did not specify in which way the information provided had been inaccurate or untrue. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

137. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

138. The applicant submitted that the Government had not complied with the interim measure ordered by the Court on 16 March 2011 as (i) his hospitalisation on 18 March 2011 had been only on account of the deterioration in his health and had not been related to the Court’s decision; and (ii) hospitals nos. 8 and 9 had not had sufficient resources to treat his diseases and therefore they had not been “specialised institutions” within the meaning of the Court’s decision of 16 March 2011. In particular, hospital no. 9 was not sufficiently equipped to carry out coronographies.

139. The applicant also complained that following his first request under Rule 39, the SIZO medical staff had stopped providing him with medical assistance and registering his complaints.

140. The applicant relied on Article 34, which reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

141. The Government disagreed.

142. The Court notes that on 16 March 2011 it decided to indicate to the Government, under Rule 39 of the Rules of Court:

“that they should ensure that the applicant receive treatment in the specialised institutions referred to in the report of 28 January 2011. The Government should inform the Court of the steps they have taken pursuant to the measure within two weeks.”

143. On 17 March 2011 the Court informed the Government of its decision and on 18 March 2011 the applicant was hospitalised.

144. The applicant was taken to hospital the day after the Court had informed the Government of its decision to indicate the interim measure (see paragraphs 46-47 above). There is no evidence that the applicant’s hospitalisation was carried out not pursuant to the Court’s decision of 16 March 2011 and the authorities have thus failed to execute the interim measure. The Court also finds that the period of time which elapsed between the indication of the interim measure to the Government and its execution by the latter could be considered as adequate.

145. The Court further observes that during the hospitalisation in question, the applicant spent most of the time in the cardiology department of hospital no. 9, which had an endocrinologist on its staff. The Court finds no reasons to doubt that the cardiology department was a specialist institution within the meaning of the Court’s decision. As regards the applicant’s submission that that hospital did not have coronography equipment, the Court notes that the authorities proposed that the applicant undergo a coronography at another clinic in Kryvyy Rig, but the applicant refused to be taken to that clinic.

146. In so far as the applicant can be understood as stating that the only specialist institution compatible with the Court’s decision of 16 March 2011 would have been the Strazhesko Cardiology Institute, the Court notes that the point of departure for verifying whether the respondent State has complied with the interim measure is the formulation of the measure itself (see Paladi v. Moldova [GC], no. 39806/05, § 91, 10 March 2009). In the present case the Court’s decision of 16 March 2011 did not refer to any specific medical institution. Nor did the medical report of 28 January 2011 suggest that the Strazhesko Cardiology Institute was the only institution where the applicant could have been provided with the medical treatment he needed.

147. The Court further notes that the case file contains no evidence that following the applicant’s first request for the application of an interim measure, the SIZO medical staff stopped providing him with medical assistance and registering his complaints, or that the inadequacy of such assistance and the lack of an effective remedy found in the context of the examination of the applicant’s complaints under Articles 3 and 13 of the Convention were related to his complaining to the Court.

148. In view of the above circumstances, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

149. 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

150. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage caused to him by the deterioration in his health which was due to inadequate health care in detention. He also claimed EUR 2,950 for medical expenses during his detention.

151. The Government contested those claims.

152. The Court finds no connection between the claim concerning the medical expenses and the violations found in the applicant’s case, therefore it rejects this claim as unsubstantiated. The Court considers that the applicant must have suffered non-pecuniary damage as a result of the violations in his case. Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court awards the applicant EUR 16,000 for non-pecuniary damage.

B. Costs and expenses

153. The applicant also claimed EUR 5,426 for legal representation before the Court and EUR 2,500 for legal representation before the national authorities.

154. The Government contested those claims.

155. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 for the proceedings before the Court.

C. Default interest

156. 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.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Joins to the merits the Government’s objection of non-exhaustion of domestic remedies concerning the complaint under Article 5 § 5 of the Convention and dismisses it after having examined the merits of the complaint;

2. Declares the complaints under Article 3 of the Convention about the inadequacy of the medical treatment in detention, the complaint under Article 13 about a lack of domestic remedies in respect of the above complaint under Article 3, the complaints under Article 5 about unlawfulness and length of the applicant’s detention, failure to examine his request for release within a reasonable time and lack of remedies in that respect, the complaints under Articles 8 and 13 about the applicant’s inability to choose his doctors and treatment and the lack of domestic remedies in that respect admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 3 of the Convention in respect of the State’s failure to safeguard the applicant’s health in detention;

4. Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy for the applicant’s complaints under Article 3 concerning the adequacy of medical assistance;

5. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 29 January 2010 to 23 May 2011;

6. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of the whole period of the applicant’s pre-trial detention;

7. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the authorities’ failure to examine the applicant’s request for release of 31 May 2010 in due time;

8. Holds that there has been a violation of Article 5 § 5 of the Convention;

9. Holds that there is no need to examine separately the complaints under Articles 8 and 13 of the Convention concerning the applicant’s inability to choose his treatment and doctors and the lack of domestic remedies in that respect;

10. Holds that the State has not failed to comply with its obligation under Article 34 of the Convention;

11. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of Ukraine at the rate applicable at the date of settlement:

(i) EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

12. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> TEMCHENKO v. UKRAINE - 30579/10 - Chamber Judgment [2015] ECHR 692 (16 July 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/692.html Cite as: [2015] ECHR 692