CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 février 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s72F8249F { font-family:Arial; display:none } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } FIFTH SECTION Application no. 29334/11 Yuriy Vitaliyovych LUTSENKO (No. 2) against Ukraine lodged on 6 May 2011 STATEMENT OF FACTS THE FACTS The applicant, Mr Yuriy Vitaliyovych Lutsenko, is a Ukrainian national who was born in 1964. He is represented before the Court by Mr   I.Y.   Fomin, a lawyer practising in Kyiv. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background of the case The applicant has been a member of the Parliament since 2002. He is the leader of the opposition party Narodna Samooborona created in December 2006. During the periods from 2005 to 2006 and from 18 December 2007 and to 11 March 2010, he exercised the function of Minister of the Interior. On 2 November 2010 the General Prosecutor’s Office (“the GPO) instituted criminal proceedings against the applicant and another individual, Mr P., on suspicion of abuse of office under Article 191 § 3 of the Criminal Code. On 5 November 2010 the applicant was formally charged. On the same day he accepted a decision of the GPO to be placed under house arrest. On 11 December 2010 the GPO instituted another criminal case against the applicant for exceeding his official powers under Article 365 § 3 of the Criminal Code on the grounds that he had arranged for the allocation of a one-room apartment to his driver Mr P. The two criminal cases were joined together. On 13 December 2010 the GPO completed the investigation in the case and formally indicted the applicant with both offences, having, however, reclassified his actions specified in the first charge under Article 191 § 5 of the Criminal Code (misappropriation, embezzlement or conversion of property by malfeasance). The applicant has been detained in Kyiv Pre-Trial Detention Centre no.   13 (“the SIZO”) since 26 December 2010. On 17 May 2011 the GPO submitted the applicant’s criminal case to the Pechersk District Court (“the Pechersk Court”). 2.     The applicant’s health condition and medical care provided to him Prior to his arrest the applicant was diagnosed with diabetes mellitus type   2 and chronic gastritis and pancreatitis. Following the applicant’s complaints about the deterioration of his health, on 24 February 2011, a private medical laboratory took his blood samples for analysis. As a result, an inflammatory process was identified in his body. The physician who made that conclusion presumed that, most probably, it was a mixed virus and bacteriologic infection. The applicant was also preliminarily diagnosed with rheumatoid arthritis. For more specific diagnoses, further specialist examinations were required. On 15 March 2011 a new blood analysis showed some negative changes in the applicant’s immune system. His requests for examination by the cardiologist/rheumatologist who issued the above conclusion were without success. On 21 April 2011 the applicant went on a hunger strike in protest to his continued pre-trial detention. On 29 April 2011 the SIZO administration placed him in a solitary ‑ confinement cell and demonstrated forced-feeding facilities (such as handcuffs, a mouth widener and a rubber tube). Those were apparently never applied to him. On 5 May 2011 the applicant’s wife requested the SIZO administration that medical examinations of her husband be conducted in her presence. By that time, the applicant had lost about 14 kilograms in weight. On 6 May 2011 he was transferred to the SIZO medical unit. According to the applicant, before 10 May 2011 his medical monitoring had been limited to measuring his blood pressure and weighing him, along with a superficial examination by the SIZO doctor. On 10 May 2011 the applicant was taken to the Kyiv City Emergency Hospital (“the Emergency Hospital”). On the following day the management of the Emergency Hospital informed the investigator that the applicant was suffering from chronic pancreatitis in an aggravation stage, chronic gastroduodenitis, cardial-type neurocirculatory dystonia, and type-2 diabetes. His condition was evaluated as being moderately serious. On 18 May 2011 the Deputy Chief Doctor of the Emergency Hospital gave additional details to the applicant’s wife as regards his health. In addition to the aforementioned diagnoses, he noted the following illnesses: chronic cholecystitis, gall bladder polyposis, autoimmune thyroiditis, euthyroidism, seborrheic dermatitis, myopia, osteochondrosis, chronic sinusitis, right-ear deafness, duodenal ulcer, stomach erosion and duodenogastric reflux. On 23 May 2011 the applicant terminated the hunger strike. On 28 May 2011 he was examined in the SIZO and diagnosed with duodenal ulcer in progressing phase, gastrointestinal bleeding, erosive gastritis, toxic-metabolic encephalopathy. Moreover, all his previously diagnosed diseases were confirmed. On 8 June 2011 the SIZO governor informed the President of the Pecherskyy Court about some additional diagnoses regarding the latter’s health and sought permission for his examination in the Emergency Hospital. More specifically, the governor referred to the following diagnoses: peptic ulcer in an active phase, gastrointestinal hemorrhage and erosive gastritis, as well as toxic discircular encephalopathy. In his reply of 14 June 2011 the President of the Pechersk Court stated that the court did not object to the applicant’s examination in the mentioned civil hospital. A copy of this letter was sent to the Convoy Service of the Ministry of the Interior with a request to ensure the applicant’s escort. On 23 June 2011 this Service replied that the applicant’s medical care was under the responsibility of the SIZO administration. On 24 June 2011 the applicant’s wife and his legal representative newly requested the court to ensure her husband’s hospitalisation. They alleged that the applicant had constant stomach pain and lost more weight, 24   kilograms in total. On 29 June 2011 the judge replied that the court did not object to it. On 15 and 22 July 2011 the applicant underwent ultrasonic examinations which discovered a liver pathology of the chronic hepatitis type. According to the applicant, no treatment was prescribed to him in that regard. On 30 August 2011 two senior civil doctors examined him in the SIZO. They diagnosed the liver cirrhosis supposedly triggered by the earlier hunger strike. Furthermore, two internal haemorrhages were noted. It was recommended that the applicant undergo a more profound examination in a specialised civil hospital. In the meantime, the applicant had required proper nutrition. On 6 September 2011 a commission of the Ministry of Health examined the applicant in the SIZO. It recommended that he undergo examination with the use of special equipment in order for specific diagnoses to be established. On 13 September 2011 the applicant’s wife again requested the Pechersk Court to allow the applicant to be hospitalised and properly treated. On 15 September 2011 the applicant was hospitalised and examined in the Kyiv City Diagnostic Centre which diagnosed the portal hypertension initial signs, as well as signs of chronic cholecystitis, angiomyolipoma of the right kidney and parenchymatous cyst of the left kidney. On the same date the applicant underwent an abdominal ultrasonic scanning which discovered signs of gall-bladder polypuses and pancreatic diffuse changes and confirmed the aforementioned kidney pathologies. On 20 September 2011 the applicant underwent a colonoscopy which showed diverticulosis of sigmoid colon. On the same day a newly appointed commission of the Ministry of Health examined him and diagnosed the fatty liver disease. Dietetic therapy, mineral-vitamin complex and proton pump blockers and hepatoprotectors were prescribed. On 23 September 2011 a haematologist examined the applicant but did not discover anything abnormal. On 29 September 2011 it was proposed that he undergo a liver biopsy which he declined. According to him, the biopsy is a surgical intervention after which the patient should stay in the medical institution under the supervision of the physician during the time which the doctor considers necessary to check any absence of the postoperative complications. However, the applicant was not provided with the guarantees that the medical care would be adequate and he would stay in the hospital after the biopsy. He considered that his immediate transportation to the SIZO would hurt his state of health. Besides, the applicant feared that the proper medical care would not be provided to him in the SIZO in case of the complications after the biopsy. He referred in this connection to his previous experience. On 4 October 2011 the applicant’s relatives brought him proton pump blockers and hepatoprotectors prescribed by the specialists of the commission of the Ministry of Health already on 20 September 2011. In early January 2012 the applicant complained to the SIZO administration about stomach and intestinal pains. On 5 and 14 January 2012 he underwent various laboratory tests in respect of his chronic gastrointestinal diseases, and on 11 January 2012 an ultrasonic examination of his abdominal cavity was conducted. On 19 January 2012, during a court hearing, the applicant complained that he did not feel well. An ambulance was therefore called. The doctor diagnosed exacerbation of chronic pancreatitis and administered some medications to the applicant. The applicant’s overall health condition was assessed as satisfactory. On 20 January 2012 the applicant was examined by a commission of medical specialists delegated by the Ministry of Health which established the following diagnoses: fatty liver disease (steatosis), signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticulosis of sigmoid colon. While the commission acknowledged a deterioration of the applicant’s health due to the “nutrition-regime disturbance and psycho-emotional overload”, it found his health generally satisfactory and not warranting any inpatient treatment in a specialised civil hospital. The physicians recommended normalisation of the nutrition regime and reduction of the psycho-emotional pressure. They also prescribed some medications. On 23 January 2012 the Ministry of Health delegated another commission, of three gastroenterologists, to examine the applicant in the SIZO. It found him to be in a generally satisfactory health condition and concluded that he did not require hospitalisation. The doctors also specified the medications to be administered to the applicant and repeated the earlier recommendation regarding his nutritional needs. 3.     Material conditions of the applicant’s detention in the SIZO On 1 July 2011 the applicant was transferred from the SIZO medical unit to an ordinary cell of nine square meters shared by three or four inmates. According to the applicant, the cell had poor ventilation and lacked personal hygiene facilities. Its walls had mould traces. Furthermore, there was no access to drinking water. 4.     Conditions of the applicant’s detention during the court hearings On 23 May 2011 the applicant was woken up at 5 a.m. to be taken to the court building for a hearing which started at about 11 a.m. He had to wait in a small room of about 1.5 square meters. Overall, for about twelve to fourteen hours, the applicant was allegedly held without food and drinking water, in poorly aired premises. On that day he terminated the hunger strike which had lasted for about a month (since 21 April 2011). According to the applicant, he was actually brought to the court hearing with an open bleeding stomach ulcers, although this disease requires immediate hospitalization. After the eight hour hearing, he was driven to the SIZO. He was transferred to the medical unit of the SIZO only after he had lost consciousness. Nevertheless, no treatment was recommended to him. According to the applicant, he suffered from the absence of drinking water and nutrition, as well as the lack of rest, during the later court hearings too, while being kept in a metal cage in the court room. According to the information submitted by the Government, there were lunch breaks, as well as technical breaks during which the applicant could have some rest. On the days of hearings detainees received food packs from the prison authorities which the applicant refused in writing on 1 December 2011, 11 January, 19 and 20 January 2012 noting that he had his own food provision. COMPLAINTS The applicant complains under Article 3 of the Convention about the material conditions of his detention in the SIZO and the alleged inadequacy of the medical care provided to him which, according to him, was in breach also with Article 2 of the Convention. Furthermore, the applicant raises a separate complaint, with reference to these provisions, about the conditions of his detention during court hearings. He complains that he was held in a small and poorly aired room waiting for the hearings and in a metal cage during the hearings themselves. The applicant also complains that he was not provided with drinking water and food and had no possibility to rest. QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention during his pre-trial detention? In particular: (a)     Has he received adequate medical care? (b)     Have the conditions of the applicant’s detention in Kyiv SIZO-13 complied with the requirements of Article 3 of the Convention? 2.     Did the conditions of the applicant’s detention on the hearing days comply with the requirements of Article 3 of the Convention? In particular: (a)     Did the applicant receive proper nutrition and water on the hearing days? (b)     Was the applicant subjected to inhuman or degrading treatment as regards his participation in the hearing of 23 May 2011 given his health condition (in terms of the sleep hours, the conditions in the court’s waiting room and in the hearing room, the nutrition and water supply, the medical care, and the duration of the hearing)? (c)     How the applicant was treated during other hearing days? What was his daily schedule? (d)     Was the applicant’s placement in a metal cage during the hearings compatible with his rights under Article 3 of the Convention?