SOKIL v. UKRAINE - 9414/13 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 939 (22 October 2015)

In the case of Sokil 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. 9414/13) 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 Maksim Viktorovich Sokil (“the applicant”), on 5 February 2013.

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

3. The applicant alleged that he had not been provided with adequate medical assistance in detention.

4. On 21 February 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1981. According to the most recently available information, in January 2014 the applicant was released from detention having served his sentence. He did not inform the Court of his current whereabouts.

6. According to the available medical documents, the applicant has been using drugs since 1996. In 1997 the applicant was diagnosed with hepatitis C and hepatic cirrhosis. The applicant has been HIV-positive since 2008. In 2008 he also had tuberculosis.

7. In March 2010 the applicant was taken into custody and placed in the Kyiv Pre-Trial Detention Centre (Київський слідчий ізолятор) (“the SIZO”). On 13 July 2010 the Obolonskyy District Court, Kyiv, sentenced the applicant to five years’ imprisonment for drug-related offences and theft. On 4 September 2010 the applicant was transferred to serve his sentence in the Bilotserkivska Correctional Colony No. 35. In May 2011 the applicant was diagnosed HIV-positive at clinical stage 4. On 24 May 2011 the applicant’s CD4+ cell count was 687 (16.3%). On 7 July 2011 the Irpinskyy Town Court released him from serving the remainder of his sentence in view of his poor state of health.

8. On 25 July 2011 the applicant was registered for regular medical checks at the Kyiv City Aids Centre.

9. On 1 February 2012 the Dniprovskyy District Court sentenced the applicant to four years’ imprisonment for theft.

10. On 2 February 2012 the applicant was placed in the Kyiv SIZO. On arrival the applicant was examined by medical staff and had two chest X-rays. It was recommended that the applicant consult a tuberculosis specialist.

11. On 8 February 2012 the applicant was examined by a tuberculosis specialist and diagnosed with post-tuberculosis residual changes in the right lung.

12. On 16 or 20 March 2012 (relevant documents contain both dates) the applicant was placed in the SIZO medical ward. He stayed there until 18 February 2013 with the following diagnoses: acute haemorrhoidal bleeding, haemorrhoids, chronic multiple drug use, HIV at clinical stage 3, oropharyngeal candidiasis, chronic secondary candidiasis, acute enterocolitis, chronic hepatitis, residual post-tuberculosis changes, liver cell failure, and other conditions. The applicant was prescribed various medication.

13. According to the Government, the applicant was examined by doctors in the SIZO medical ward on numerous occasions. In particular, on 22 March 2012 the applicant was examined by a surgeon and was examined by a general practitioner on the following dates: on 11, 16, 21 and 25 May 2012 with complaints of fever and weakness; on 18 and 22 June 2012 with complaints of fever and weakness; on 16 July 2012 with complaints of coughing with sputum, sweating, general weakness and fever; on 1, 3, 10, 15, 23 and 28 August 2012; on 4 and 10 September 2012; on 4, 10, 15, 22 and 29 October 2012; on 5, 9, 16, 23 and 29 November 2012; and on 5, 11, 18, 24 and 27 December 2012.

On the majority of those occasions it was decided to continue the prescribed treatment.

14. In addition to the above consultations, between March 2012 and 18 February 2013 the applicant received the following medical care: on 10 April 2012 the applicant had a chest X-ray and it was recommended that he see a tuberculosis specialist. Subsequently the applicant was examined and diagnosed with post-tuberculosis residual changes in the right lung. On 13 July 2012 he had another consultation with a tuberculosis specialist; on 24 October 2012 the applicant was examined by an infection diseases specialist and diagnosed, inter alia, with HIV at clinical stage 4. It was also suspected that the applicant had had a tuberculosis relapse, so an additional X-ray was recommended; on 7 November 2012 the applicant had an X-ray. On 14 November 2012 a tuberculosis specialist examined the applicant and concluded that there were no signs of active tuberculosis.

15. Between 18 April and 20 December 2012, according to the test results, the applicant’s CD4+ cell count dropped from 762 (18.4%) to 467 (14.3%).

16. Meanwhile, on 23 July 2012 the Kyiv City Court of Appeal quashed the decision of 1 February 2012 in the applicant’s criminal case and remitted the case for a fresh court examination. On 3 September 2012 the Dniprovskyy District Court, Kyiv, found the applicant guilty of drug-related offences and theft, and sentenced him to two years’ imprisonment.

17. On 14 January 2013 the applicant was examined in the Kyiv City Diagnostic Centre. Two days later the applicant was examined by a tuberculosis specialist and diagnosed with tuberculosis. The applicant was prescribed anti-tuberculosis treatment.

18. On 23 January 2013 the applicant’s CD4+ cell count was 314.

19. On 25 and 30 January and 4 February 2013 the applicant was examined by a general practitioner. The prescribed treatment was continued.

20. On 5 February 2013 the applicant requested under Rule 39 of the Rules of Court that the respondent Government be asked to secure an appropriate medical examination and treatment for him which, according to the applicant, was impossible in the Kyiv SIZO. On 7 February 2013 the Court refused the applicant’s request.

21. On 11 February 2013 it was recommended by a tuberculosis specialist that the applicant be transferred to a specialised tuberculosis hospital.

22. On 18 February 2013 the applicant was transferred to Zhovtnevska Correctional Colony No. 17 (Жовтневська виправна колонія №17). He arrived there on 21 February 2013 and was placed in a specialised tuberculosis hospital. Upon arrival the applicant complained of a cough with mucopurulent sputum, pain in the chest and armpits, headache, and abdominal pain and distension. It was concluded that the applicant’s state of health was of medium severity. He underwent various blood, urine and sputum tests, X-rays and ultrasound examinations. On 21 and 22 February 2013 the applicant was examined by an otolaryngologist, a psychiatrist and a general practitioner. The applicant was diagnosed with tuberculosis, HIV, encephalopathy, chronic hepatitis and other diseases. The applicant was prescribed anti-tuberculosis treatment.

23. The Government provided a detailed description of the examinations, prescriptions and treatment the applicant received in the hospital between February and October 2013. It included numerous X-rays, ultrasound examinations, blood, urine and sputum tests, examinations by hospital doctors and external specialists: a tuberculosis specialist (on 28 February 2013 and 15 August 2013), an otolaryngologist (on 26 March 2013: the applicant was diagnosed with otitis), a psychiatrist (on 22 February 2013: the applicant was diagnosed with opium narcotic addiction in remission); a dentist (3 April 2013), a general practitioner (on 13, 14, 19, 25 and 30 March 2013; on 1, 2, 3, 10, 12, 22, 26, 28 and 29 April 2013; on 7, 12 and 16 May 2013; on 1, 4, 15, 21 and 26 June 2013; and on 5, 8 and 17 July 2013); a surgeon (on 24 April 2013); a dermatologist (on 24 April 2013); an infectious diseases specialist from the Kharkiv Regional HIV/Aids Centre, who prescribed antiretroviral therapy (“ART”) for the applicant (22 July 2013); and a neuropathologist (on 13 August 2013).

24. On 3 May 2013 the applicant’s CD4+ cell count was 477 (15.7%).

25. On 21 August 2013 the applicant started the ART.

26. On 4 September 2013 the applicant’s CD4+ cell count was 297 (12.1%).

27. On 20 September 2013 a tuberculosis specialist from the Kharkiv Medical Academy of Postgraduate Education concluded that the applicant’s anti-tuberculosis treatment had been effective.

28. On 3 October 2013 the applicant was discharged from the hospital with the diagnosis of, inter alia, post-tuberculosis residual changes, HIV (clinical stage 4), chronic hepatitis in unstable remission, and chronic thrombophlebitis. The applicant was transferred to Buchanska Correctional Colony No. 85 (Бучанська виправна колонія №85) since his state of health had improved. He was provided with ART medication for two months.

29. According to the parties, while in the hospital the applicant also received various medication from his relatives.

30. The applicant spent the majority of the time between 1 November and 30 December 2013 in the Buchanska Correctional Colony Hospital. On 23 December 2013 the applicant’s CD4+cell count was 314 (14.8%).

31. On 31 January 2014 the applicant was released, having served his sentence.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND MATERIALS

32. The relevant domestic law and international and domestic materials can be found in the judgment in the case of Sergey Antonov v. Ukraine (no. 40512/13, §§ 40-56, 22 October 2015).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

33. The applicant complained that he had not been provided with adequate medical assistance in detention, in breach of 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

34. The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaint. In particular, the applicant should have lodged a complaint with the prosecutor’s office, which was competent to monitor compliance with legal acts in detention facilities. The prosecutor’s decisions in this respect are mandatory and should be enforced immediately. The applicant did not complain to a prosecutor about the absence of adequate medical assistance.

35. The Government further submitted that once the applicant had been placed in the SIZO on 1 February 2012 he received prompt treatment in full. Before his placement in detention the applicant was suffering from a number of serious diseases. He was also using drugs. In 1997 he was diagnosed with hepatitis C and in 2008 with pulmonary tuberculosis and HIV. However, while in detention the applicant was under the constant supervision of doctors. In January 2013 he was diagnosed with a tuberculosis relapse and was examined (including examination in the Kyiv City Diagnostics Centre) and received appropriate treatment. Later the applicant was transferred to a specialised tuberculosis hospital in the Zhovtnevska Correctional Colony. In respect of the applicant’s HIV status the Government submitted that since the applicant also had tuberculosis the latter had had to be treated first.

36. The Government concluded that the applicant had been placed in a specialised hospital, had been under constant medical supervision, and had received appropriate medical assistance when needed. The applicant had failed to produce evidence that on any occasion his complaints had not been addressed or that his treatment had led to a worsening of his state of health. Moreover, deterioration of a person’s health does not of itself indicate inadequate medical treatment (see Rudenko v. Ukraine [Committee], no. 5797/05, § 94, 25 November 2010). In total, the applicant received special treatment in respect of his diseases, as well as relevant symptomatic treatment which is confirmed by his regular examinations by doctors and prescription of medication. Moreover, the applicant has never complained to the State authorities of inadequate medical treatment. The Government thus considered the applicant’s complaint unsubstantiated.

37. The applicant submitted, referring to the Court’s case-law in this respect (see Koval v. Ukraine, no. 65550/01, §§ 92-98, 19 October 2006) that there were no effective domestic remedies in respect of his complaint. In particular, a complaint to a public prosecutor cannot be considered such a remedy (see Merit v. Ukraine, no. 66561/01, § 63, 30 March 2004; mutatis mutandis, Nevmerzhitsky v. Ukraine, no. 54825/00, § 116, ECHR 2005-II (extracts); and Salov v. Ukraine, no. 65518/01, § 58, ECHR 2005-VIII (extracts)). In particular, the Government have not demonstrated how a complaint to the prosecutor could have provided the applicant with redress for an alleged lack of medical assistance.

38. The Court notes that it has already dismissed similar objections based on non-exhaustion, finding the remedy referred to by the Government ineffective on the grounds that it had not been shown that recourse to such proceedings could have brought about an improvement in the applicants’ detention conditions (see Melnik v. Ukraine, no. 72286/01, §§ 69, 28 March 2006; more recently, Buglov v. Ukraine, no. 28825/02, § 74, 10 July 2014) and sees no reason to depart from that finding in the present case. The Court therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies.

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

B. Merits

40. The Government did not submit observations on the merits.

41. The applicant maintained that he had been subjected to ill-treatment because of the failure to provide him with prompt and adequate medical assistance. He contested the Government’s statement about proper and timely medical treatment provided to him. In particular, instead of improving, the applicant’s health deteriorated. Some of the information submitted by the Government was untrue or contained intentional omissions. The declining number of the applicant’s CD cells confirms this statement; in particular, the applicant’s HIV status progressed from clinical stage 3 to clinical stage 4.

42. The applicant stated that he had been HIV-positive since 2008 and had been registered at the Kyiv City Aids Centre since 2011. However, the applicant started receiving the ART only in August 2013.

43. As for the applicant’s other health problems, the applicant noted that the treatment prescribed to him was mainly symptomatic and there was no indication that there had been a comprehensive treatment strategy aimed at curing his illnesses.

44. The applicant stated that his relatives had been requested to send in medication which had later been used not by him personally but by the medical unit. In particular, on one occasion the applicant’s relatives were requested to send him four thermometers.

45. The applicant also noted that his representative had requested the colony on several occasions to provide her with information about the applicant’s state of health, but had received a refusal each time. The applicant stated that the medical documents provided by the Government were contradictory and did not prove that he had actually taken the medication sent in by his family or prescribed to him in detention.

46. In view of the above, the applicant maintained that he had not received proper medical assistance in detention, in breach of Article 3 of the Convention.

47. 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 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).

48. Other relevant principles determined by the Court in its case-law as regards Article 3 of the Convention in respect of medical treatment in detention are summarised in the case of Sergey Antonov v. Ukraine (cited above, §§ 70-75).

49. The Court observes that in the present case the applicant was suffering from various serious diseases before being placed in detention for the period in question (February 2012-January 2014). In particular, he was diagnosed HIV-positive as early as 2008, and the authorities apparently were aware of this and of the advanced stage of his illness (see paragraph 7 above). Although for the majority of time he was in detention the applicant was a patient in various medical facilities, there is no evidence that he received any treatment for his HIV for a considerable period of time. Despite the authorities’ knowledge of the applicant’s HIV status, the ART was prescribed to him only in July 2013, nearly a year and a half after the applicant had been placed in detention.

50. The Government submitted that at a particular moment it was impossible to prescribe the applicant ART, since his tuberculosis had to be treated first. The Court reiterates that that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists, or to establish whether the applicant in fact required such treatment during the relevant period (see E.A. v. Russia, no. 44187/04, § 57, 23 May 2013) 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). However, even before the applicant had been diagnosed with tuberculosis in January 2013, he had received no ART for ten months.

51. The Court reiterates that the issues of inadequate medical assistance for people with HIV in Ukrainian detention facilities have 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 the case of Kats and Others cited above, despite the authorities’ knowledge that the applicants’ daughter/mother was HIV-positive there was no relevant treatment at all, which led to the person’s death. In the case of Salakhov and Islyamova v. Ukraine the first applicant’s treatment for an HIV-related infection was sporadic and irregular. The overall situation in respect of treatment for people with HIV in detention is also addressed in the case of Sergey Antonov v. Ukraine (no. 40512/13, 22 October 2015).

52. As regards the applicant’s allegations that there was no comprehensive treatment strategy aimed at tackling his other health problems, 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, such as expert reports, which was capable of disclosing serious failings in the applicant’s medical care (see Valeriy Samoylov v. Russia, no. 57541/09, § 80, 24 January 2012).

53. The Court further reiterates that it has already examined a large number of cases against Ukraine raising complaints of inadequate medical services afforded to inmates (see, among the most recent ones, 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, 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.

54. 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). Nonetheless, 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). In that role, 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 received comprehensive and adequate medical care in detention.

55. In line with the above-mentioned principles, the Court notes that the evidence submitted by the Government in support of their statement that the applicant’s medical care was adequate and that he received the prescribed medication in full is unsatisfactory. The copy of the applicant’s medical file is of very poor quality and very often unreadable. Very often it is impossible to conclude which complaints of the applicant were addressed or to establish to what extent the prescriptions were followed through.

56. The Court, however, notes that it is not contested by the applicant that he had made a full recovery from his tuberculosis.

57. Nevertheless, the Court concludes that given, in particular, the failure of the SIZO authorities to promptly provide the relevant HIV treatment, the applicant was not provided with adequate medical assistance while in detention, which amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

58. 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

59. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.

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

61. The Court, ruling on an equitable basis, awards the applicant EUR 7,500 in respect of non-pecuniary damage.

B. Costs and expenses

62. The applicant also claimed EUR 850 for costs and expenses incurred before the Court.

63. The Government did not submit any comments in respect of this claim.

64. 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, given that the applicant had already been granted EUR 850 under the legal aid scheme, the Court rejects the claim for costs and expenses for the proceedings before the Court.

C. Default interest

65. 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. Declares the application admissible;

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

3. 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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, 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;

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

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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