CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 7 mars 2019

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UKRAINE (Applications nos. 54503/08 and 7 others - see appended list )                 JUDGMENT     This version was rectified on 7 June and 22 July 2019 under Rule 81 of the Rules of Court     STRASBOURG     7 March 2019     This judgment is final but it may be subject to editorial revision   In the case of Korol and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a   Committee composed of:   Síofra O’Leary, President,   Mārtiņš Mits,   Lado Chanturia, judges, and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 14 February 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.     Notice of the applications was given to the Ukrainian Government (“the Government”). THE FACTS 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4.     The applicants complained that they did not receive adequate medical care in detention. Some applicants also raised other complaints under the provisions of the Convention. THE LAW I.     JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.     The applicants complained principally that they were not afforded adequate medical treatment in detention. They relied on Article   3 of the Convention, which reads as follows: Article   3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7.     The Court notes that the applicants suffered from serious medical conditions, as indicated in the appended table, which affected their everyday functioning. 8.     The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine (see Blokhin v.   Russia [GC], no.   47152/06, §   137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate (see   Pokhlebin v.   Ukraine , no.   35581/06, § 62, 20 May 2010, and Gorbulya v.   Russia , no.   31535/09, § 62, 6   March 2014, with further references) and that ‒ where necessitated by the nature of a medical condition ‒ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see, inter alia , Ukhan v.   Ukraine , no. 30628/02, § 74, 18 December 2008, and   Kolesnikovich v.   Russia , no.   44694/13, §   70, 22   March 2016, with further references). The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see   Sadretdinov v.   Russia , no.   17564/06, §   67, 24   May 2016, and Konovalchuk v. Ukraine , no. 31928/15, § 52, 13 October 2016, with further references). 9.     Having examined all the material submitted to it, the Court has identified the shortcomings in the applicants’ medical treatment, which are listed in the appended table. The Court has already found a violation in respect of issues similar to those in the present case (see   Nevmerzhitsky v.   Ukraine , no. 54825/00, §§ 103-05, ECHR 2005 ‑ II (extracts); Melnik v.   Ukraine , no. 72286/01, §§ 104-06, 28 March 2006; Logvinenko v.   Ukraine , no. 13448/07, §§   68-78, 14   October 2010; Sergey Antonov v.   Ukraine , no. 40512/13, §§ 76-90, 22 October 2015; and Pivovarnik v.   Ukraine , no. 29070/15, §§ 37-46, 6 October 2016). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicants did not receive comprehensive and adequate medical care whilst in detention. 10.     These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 11.     The applicants in applications nos. 54503/08 and 38721/10 also complained that no effective domestic remedies regarding complaints about the quality of the medical care in detention were available to them. Their complaints fall to be examined under Article   13 of the Convention, which reads as follows: Article   13 “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...” 12.     The Court has on many occasions established that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention (see, among many other authorities, Melnik v.   Ukraine , cited above, §§ 113-16; Koval v. Ukraine , no. 65550/01, §§ 93-98, 19 October 2006; and Savinov v. Ukraine , no. 5212/13, § 58, 22 October 2015). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government constituted an effective remedy to prevent the alleged violations or stop them from continuing, or to provide the applicants with adequate and sufficient redress for their complaints under Article   3 of the Convention. 13.     The Court sees no reason which would justify departure from its well-established case-law on the issue. It finds that the applicants in applications nos. 54503/08 and 38721/10 did not have at their disposal an effective domestic remedy for their complaints, in breach of Article 13 of the Convention. IV.     OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 14.     The applicants in applications nos. 65987/09, 29273/10 and 38721/10 submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see   appended table). These complaints are not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Melnik v. Ukraine (cited above), Kharchenko v. Ukraine, (no.   40107/02, 10   February 2011), Ignatov v. Ukraine, (no.   40583/15, 15   December 2016) and Vasiliy Ivashchenko v. Ukraine , no.   760/03, §§   103-10, 26 July 2012). V.     REMAINING COMPLAINTS 15.     In applications nos.   25725/09, 51967/09, 65987/09, 29273/10 and 38721/10 the applicants also raised other complaints under various Articles of the Convention. 16.     The Court has examined the complaints in these applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles   34 and   35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the above-mentioned applications must be rejected in accordance with Article   35   §§   1 and 4 of the Convention. VI.     APPLICATION OF ARTICLE   41 OF THE CONVENTION 17.     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.” 18.     Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Logvinenko v. Ukraine, cited above, §§ 89-95, 14 October 2010), the Court considers it reasonable to award the sums indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicants and makes no award in respect of the applicant in application no. 157/18 who did not request monetary compensation. 19.     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.     Decides to join the applications;   2.     Declares the complaints concerning the failure of the authorities to provide the applicants with adequate medical care in detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of applications nos.   25725/09, 51967/09, 65987/09, 29273/10 and 38721/10 inadmissible;   3.     Holds that these complaints disclose a breach of Article   3 of the Convention on account of the inadequate medical care in detention;   4.     Holds that the complaints in applications nos. 54503/08 and 38721/10 disclose a breach of Article   13 of the Convention on account of the lack of an effective domestic remedy regarding complaints about the quality of the medical care in detention;   5.     Holds that there has been a violation of the Convention in applications nos. 65987/09, 29273/10 and 38721/10 as regards the other complaints raised under well-established case-law of the Court (see appended table);   6.     Holds (a)     that the respondent State is to pay the other applicants, within three months, the amounts indicated in the appended table, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.   7.     Dismisses the remainder of the applicants’ claims for just satisfaction . Done in English, and notified in writing on 7 March 2019, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Liv Tigerstedt   Síofra O’Leary Acting Deputy Registrar   President   APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate medical treatment in detention) No. Application no. Date of introduction Applicant’s name Date of birth   Representative’s name and location Principal medical condition Shortcomings in medical treatment   Dates Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]     54503/08 07/11/2008 Viktor Viktorovych Korol 04/11/1966 Lyudmyla Oleksandrivna Sharaya Cherkasy Tuberculosis lacking/delayed drug therapy, Recurrence of disease (18/08/2009)   29/01/2008 to 18/07/2008 5 months and 20 days Art. 13 - lack of any effective remedy in domestic law for the complaint of inadequate medical treatment in prison 7,500     25725/09 30/03/2009 Eduard Lvovich Soloveychik 20/10/1981 Olga Viktorovna Belyayeva Dnipro HIV/AIDS, Tuberculosis, Hepatitis Delay in provision of treatment of HIV, aggravation of HIV infection to stage III. Treatment not systematic and comprehensive resulted in recurrence of tuberculosis and transformation of hepatitis into a chronic form   21/08/2006 to 20/03/2009 2 years and 7 months   7,500     51967/09 05/07/2009 Andrey Vladimirovich Dubrova [2] 15/08/1975 Taras Oleksandrovych Kalmykov Kharkiv HIV/AIDS lacking/delayed drug therapy, aggravation of HIV infection from stage III to stage IV   21/05/2012 to 01/10/2013 1 year, 4 months and 11 days   7,500     65987/09 16/11/2009 Oleksiy Ivanovych Kravchenko 20/01/1956     peptic ulcer Provision of symptomatic treatment, no comprehensive approach in treatment, the Government’s failure to provide documentary evidence proving that the prescribed medication has been administered   18/01/2008 to 26/12/2013 5 years, 11 months and 9 days Art. 34 - hindrance in the exercise of the right of individual petition   - domestic court’s refusal to provide the applicant with copies of the documents from his case file after the proceedings against him had been completed ( Vasiliy Ivashchenko v. Ukraine , no.   760/03, §§ 103-10, 26 July 2012) 7,500     29273/10 28/05/2010 Yevgeniy Anatolyevich Levchenko 11/03/1974 Oleg Igorovych Veremiyenko Kyiv HIV/AIDS, Tuberculosis lacking/delayed drug therapy for chronic tuberculosis which aggravated and transformed into a multi-drug resistant form; lacking/delayed drug therapy for stage III HIV   16/03/2010 to 26/11/2011 1 year, 8 months and 11 days Art. 3 - inadequate conditions of detention:   Mariupol SIZO, 17/08/2009 to 22/01/2011 1 year, 5 months and 6 days   overcrowding (2 m²), lack of or insufficient quantity of food 9,750     38721/10 02/07/2010 Ruslan Petrovych Drygin 27/12/1981 Andriy Anatoliyovych Kristenko Kharkiv consolidated ankle fracture lacking/delayed surgery, lack of/delay in consultation by a specialist   01/01/2010 to 17/01/2011 1 year and 17 days Art. 5 (3) - excessive length of pre-trial detention:   29/01/2009 to 17/01/2011 1 year, 11 months, and 18 days   Art. 13 - lack of any effective remedy in domestic law for the complaint of inadequate medical treatment in prison 9,750     54570/16 19/09/2016 Ivan Sergiyovych Zhukov 11/07/1984 [3] Vasyl Ivanovych Melnychuk Kyiv Kidney disease delay in surgery   05/09/2013 to 27/09/2016 3 years and 23 days   7,500     157/18 26/12/2017 Stanislav Fedorovych Denysyuk 14/01/1958 Anton Mykolayovych Bashlovka Kyiv Heart condition, bronchial diseases lack of/delay in consultation by a   specialist, lack of/delay in medical examination, lack of/delay in medical testing, lacking/delayed drug therapy   08/06/2017 to 22/05/2018 11 months and 15 days   0     [1] .     Plus any tax that may be chargeable to the applicants. [2] .     Rectified on 7 June 2019: the applicant’s last name was “Dubrov.”   [3] Rectified on 22 July 2019: the applicant’s date of birth was 30/01/1984 in the previous version.