CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 juin 2013

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He is detained on remand in the Kyiv Pre-trial Detention Facility no. 13 (“the SIZO”). The applicant is represented before the Court by Mr I.V. Mogila, a lawyer practising in Kyiv. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 2 April 2007 the applicant underwent surgery in connection with his exomphalos [1] . 1.     The applicant’s arrest and alleged ill-treatment by the police On 9 February 2008 the police arrested the applicant on suspicion of having committed abduction and murder, and placed him in detention in a cell of the Shevchenkivskyy District Police Station in Kyiv. According to the applicant, from 10 to 13 February 2008 the police officers beat him up to force him to confess of murder and abduction. After the beating the applicant started suffering from constant pain in his abdomen. On 13 February 2008 the applicant’s detention on remand was ordered and the applicant was transferred to the SIZO. However, the SIZO staff refused to accept the applicant allegedly because of his poor health condition. The police then transported him back to the cell in the Shevchenkivskyy District Police Station. The applicant remained in that cell until 16 February 2008. According to the applicant, between 13 and 16   February 2008 the police officers beat him up. On 16 February 2008 the police transferred the applicant to the Kyiv Temporary Detention Facility (“the ITT”). The ITT medical staff examined the applicant on the same date and noted that he had a bruise under his eye but no other bodily injuries. The applicant did not raise any complaints about his health condition or ill-treatment by the police. On 19 February 2008 the ITT staff called the applicant an ambulance which transported him to the Kyiv Medical Emergency Hospital (“the KMEH”). The applicant stayed in that hospital until 25 February 2008 and received treatment for “abdomen and face tissues contusion”. No further details are available about the injuries found on the applicant during his stay in the hospital or the treatment received by him. On 25 February 2008 the applicant was discharged from the hospital and placed back in the ITT. In summer 2008 the applicant’s lawyer complained to the prosecutors about the applicant’s beating on 10-16 February 2008. On 24 June 2008 the investigator dealing with the criminal case against the applicant ordered a forensic medical expert to establish the injuries the applicant had sustained between 9 and 16 February 2008. The forensic medical expert examined the applicant on the same date and did not find on him any injuries which could have been inflicted during the said period. The expert noted that a liquid was leaking from the applicant’s navel and recommended him examination by a surgeon. On several occasions the prosecutors refused to institute criminal proceedings into the applicant’s allegations of the beating by the police between 10 and 16 February 2008. Those refusals were quashed by the higher prosecutors or the courts. On 30 March 2012 the Shevchenkivskyy District Court of Kyiv ordered the prosecutors to conduct an additional enquiry into the applicant’s complaints of ill-treatment. That enquiry is still pending. 2.     The applicant’s detention in the SIZO and medical assistance provided to him in that facility On 26 February 2008 the applicant was transferred from the ITT to the SIZO. Upon his arrival he was examined by a SIZO physician who diagnosed him with “post-surgery condition” after a surgery at exomphalos in 2007. No bodily injuries were found on the applicant who did not raise any complaints about his health condition or the ill-treatment by the police. On 16 April 2008 the applicant was again examined by the SIZO physician. There is no evidence in the case-file that the applicant requested medical assistance between 26 February and 16 April 2008. On an unspecified date the applicant complained to the SIZO staff about constant pain in his abdomen. The SIZO doctors examined him and established that the pain was due to a post-surgical navel fistula. From 14   May to 2 July 2008 the applicant stayed in the SIZO medical unit and received oral medication. The SIZO medical unit was not sufficiently equipped to carry out surgery. However, it had a surgeon and other specialised doctors among its staff. On 13 June 2008 the applicant was transported to one of the public hospitals and examined by a surgeon who diagnosed suture sinus after surgery at exomphalos. He recommended application of antiseptic on the applicant’s navel area and non-urgent surgery to remove the suture sinus. The surgeon also noted that the applicant did not need urgent in-patient treatment, and the applicant returned to the SIZO on the same day. On 22 October 2008 he was examined in the SIZO by another surgeon who noted that the applicant did not need inpatient treatment or urgent surgery in connection with his navel fistula. On 26 November and 15 December 2008 the applicant underwent examinations in the KMEH in connection with the constant pain in his abdomen. He was diagnosed with omphalitis (inflammation of navel) and post-surgical navel fistula. Between 9 February and 10 April 2009 the applicant stayed in the SIZO medical unit and received treatment for omphalitis, urachus cyst, navel fistula and suture sinus, ischemic heart disease, encelopathy and exacerbation of chronic pancreatitis. The treatment consisted of oral medication and application of antiseptic to the applicant’s navel area. On 6 May and 31 July 2009 the applicant was examined by the SIZO surgeon in connection with his navel fistula. On the latter date the surgeon recommended him a surgery for the fistula in a public hospital. On 7 May 2009 the applicant was examined by a cardiologist. On 30 July 2009 he was examined by a neuropathologist and cardiologist. On 4 August 2009 the SIZO informed the applicant’s wife that the surgery to remove the applicant’s navel fistula would be arranged as soon as the court dealing with the criminal case against the applicant allowed his transfer to an outside medical institution. There is no indication that the penitentiary authorities or the applicant requested the court to allow such transfer. From September 2009 onwards on many occasions the applicant requested the SIZO administration to transfer him to an outside medical institution for surgical removal of his navel fistula. The SIZO administration replied that the applicant received appropriate medical treatment in the SIZO and did not need surgery. The applicant insisted that the treatment he received was ineffective and the only appropriate treatment in his case would be surgery. On 24 September 2009 during a court hearing the court staff called an ambulance for the applicant. The ambulance doctors recommended urgent hospitalisation having suspected that the applicant had a peretonitis. The judge refused to allow the applicant’s hospitalisation. After the hearing the applicant was taken back to the SIZO and placed in the medical unit. He remained in that unit until 8 October 2009 and was treated for his navel fistula and inflammation of navel (oral medication and antiseptic applications on the navel area). On 29 September 2009 the applicant was transported to a public hospital in connection with the constant pain in his abdomen. The hospital doctors diagnosed the applicant with omphalitis. On the same date the applicant returned to the SIZO. On 30 October 2009 the Court granted the applicant’s request under Rule   39 of the Rules of the Court and ordered the Government to “place the applicant into a medical institution to receive an appropriate medical treatment”. On 4 November 2009 the SIZO administration proposed the applicant to place him to the Kyiv Medical Emergency Hospital. The applicant refused explaining that he did not trust that hospital’s doctors. On the same date the applicant’s lawyer V. requested the SIZO to transfer the applicant to the public hospital no. 6 for inpatient treatment in connection with his fistula. The applicant’s lawyer A., in his turn, requested the SIZO to hospitalise the applicant to the private hospital “Boris”. The applicant agreed to be hospitalised in the hospital “Boris”. However, he was placed in neither of the two hospitals. On the same date the SIZO staff called an ambulance to the applicant. The ambulance doctors noted that the applicant did not require an urgent hospitalisation and recommended continuation of the outpatient treatment in connection with his fistula. The applicant was then placed in the SIZO medical unit. On 9 November and 16 November 2009 the SIZO replied to the requests of the lawyers V. and A. concerning the applicant’s hospitalisation. The SIZO administration stated that it was not competent to decide on the applicant’s transfer to an outside medical institution and proposed that the lawyers should request the court dealing with the applicant’s case to authorize such transfer. There is no evidence that the lawyers did so. On 10 November 2009 the applicant was taken to the public hospital no. 9 for examination. The doctors recommended non-urgent surgery to remove his navel fistula. On the same date the applicant returned to the SIZO. On 19 November 2009 a neuropathologist examined the applicant in the SIZO. On 26 November 2009 an ambulance doctor examined him in the SIZO in connection with the constant pain in his abdomen. On 27 November 2009 a civil doctor examined the applicant in the SIZO and recommended continuing outpatient treatment in connection with the navel fistula. On 4 December 2009 the Court decided to lift the interim measure in the applicant’s case having received from the Government the additional information on the applicant’s state of health and the treatment provided to him in the SIZO. On 25 December 2009 the SIZO informed the applicant’s lawyer V. that the applicant did not require an urgent hospitalisation to an outside medical institution and that he received adequate medical treatment for his fistula in the SIZO. On 18 January 2010 the applicant was placed into the surgery department of a prison hospital. On 20 January 2010 he underwent surgery during which his navel fistula was removed. On 26 January 2010 he was transferred back to the SIZO. The criminal case against the applicant is still pending, the applicant remains in the SIZO. In letter of January 2013 he informed the Court that his health condition had deteriorated since the removal of his navel fistula in 2010. No further details about the applicant’s health in the period after the surgery are available to the Court. Between 13 February 2008 and 20 January 2010 the applicant suffered from constant sever pain in his abdomen, frequent headaches, fever, dizziness and nausea. The SIZO staff provided him with symptomatic treatment, but after a short period of time his condition deteriorated again. 3.     Material conditions of the applicant’s detention in the SIZO According to the applicant, the cells in which he was kept in the SIZO had no windows, the electric light was dimmed and constantly on, the inmates slept on beds without mattresses or linen. The applicant did not provide any details about the size of those cells or the number of inmates in each cell. The quality and quantity of food was unsatisfactory: tea and bread in the morning, porridge in the afternoon and boiled water in the evening. During the court hearings the applicant was not allowed to eat or drink. The number and duration of the court hearings which the applicant attended remains unknown. COMPLAINTS The applicant complains under Article 3 of the Convention that: (i) he was beaten up by the police officers between 10 and 16 February 2008 and the investigation into those events is ineffective; (ii) the physical conditions of his detention in the SIZO amount to ill-treatment; (iii) he was not allowed to eat or drink during court hearings; (iv) he was not provided with appropriate medical treatment in connection with the constant pain in his abdomen. In particular, from February 2008 to January 2010 the authorities refused to organise surgical removal of his navel fistula. The applicant complains under Article 5 § 1 (c) that his detention was unlawful. He also complains under Article 5 § 3 of the Convention that the courts reviewing his detention did not take into account his arguments concerning the poor material conditions in the SIZO and the lack of adequate medical assistance in that facility. The applicant complains under Article 13 of the Convention that he does not have any effective remedy in respect of the above complaints. The applicant also complains that the State failed to comply with the Court’s decision under Rule 39. Finally, the applicant complains about violation of his rights under Article 14 of the Convention without any further specifications. QUESTIONS TO THE PARTIES 1.     Do the material conditions of the applicant’s detention in Kyiv SIZO no. 13 amount to a breach of Article 3 of the Convention? 2.     Was the medical assistance provided to the applicant during his detention compatible with the requirements of Article   3 of the Convention? 3.     Did the prohibition to eat or drink during the court hearings amount to a breach of the applicant’s rights under Article 3 of the Convention? 4.     Has the applicant been subjected to inhuman or degrading treatment between 10 and 16 February 2008 in breach of Article 3 of the Convention? 5.     Has the investigation in respect of the applicant’s allegations of ill-treatment on 10-16 February 2008 been in breach of Article 3 of the Convention? 6.     Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article   13 of the Convention?     1.     An abnormality in which the abdomen's contents herniate into the umbilical cord