CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 janvier 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s76CF415B { page-break-before:always; clear:both }   Communicated on 16 January 2014   FIFTH SECTION Application no. 37240/07 Valeriy Vasilyevich KIYASHKO against Ukraine lodged on 28 July 2007 STATEMENT OF FACTS THE FACTS The applicant, Mr Valeriy Vasilyevich Kiyashko, is a Ukrainian national, who was born in 1955 and lives in Poltava. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Criminal proceedings against the applicant On 16 September 2004 the applicant, who was at that time undergoing inpatient medical treatment in a psychiatric hospital from 3 to 16 September 2004 (according to the certificate issued by the hospital), was apprehended by the police and taken, without explanations, to the police station. On the same day, he was questioned, in the absence of a lawyer, in connection with a fraud. After being questioned, he was not released but spent all night at the police station. On 17 September 2004 an administrative offence report was drawn up. According to it, the applicant had breached the public order by swearing louds in public. On the same day, the Oktyabrskiy District Court of Poltava ordered the applicant’s “administrative detention” for six days. On 17 September 2004 the investigator opened a criminal case against the applicant on suspicion of having committed fraud as part of a group. On 22 September 2004 the applicant was detained as a criminal suspect. On 25 September 2004 the Zhovtneviy District Court of Poltava remanded the applicant in custody pending trial for two months. On 30 September 3004 the applicant was charged with fraud committed as part of a group. On 17 November 2004, upon the applicant’s request, A. was admitted to the proceedings as the applicant’s lawyer, and the applicant’s mother as a public defender. On 26 November 2004 the Kyivskiy District Court of Poltava extended the applicant’s pre-trial detention for another two months. In a judgment of 6 October 2006 the Kyivskiy District Court of Poltava found the applicant guilty as charged and sentenced him to five years’ imprisonment. On 14 September 2007 the Poltava Regional Court of Appeal upheld this judgment. On 20 January 2009 the Supreme Court of Ukraine upheld the judgments of the lower courts. 2.     Conditions of detention (a)     Poltava Pre-Trial Detention Centre no. 23 (“SIZO”) From 4 October 2004 to 2 October 2007 the applicant was detained in the SIZO, in various cells of the same time type. Each cell measured seven square metres and was occupied by three to four persons. The window was covered by a metal shield and metal bars preventing daylight and fresh air from reaching the cell. There was no ventilation in the cell while most of the detainees were smokers. In summer it was extremely hot, forcing everyone to go half naked, and during the winter it was very cold. The light in the cell was very poor, with the only electric bulb of 25-40W above the front door. It was switched on around the clock. A loudspeaker of the centrally operated radio was constantly on from 6 to 10 am. playing loud and unvaried music. Detainees had no access to television or newspapers. Each cell had poor sanitary conditions. It was very humid and the walls were covered with smoke and mould. It was infested by rats, mice, bedbugs, lice, spiders and cockroaches. The toilet was not separated from the living area, had no flush and emitted a foul smell that lingered in the air. Detainees were forced to eat their meals in close proximity to the toilets. No hygiene items were distributed to them. Bed linen was issued once and for the whole period of detention which, in the applicant’s case, was for three years. The mattress was dirty and torn. The food was of poor quality, often made from spoiled products, and unvaried. It smelled badly. No meat, fresh fruit or vegetables were provided. Detainees were allowed to take shower once in 7 ‑ 10 days or even a fortnight, only ten to fifteen minutes. In order to get to the shower area, investigation rooms or for transfers to court, detainees had to pass through an underground tunnel which had poor light and was flooded by sewage. The shower was dirty and the water flow could not be adjusted. The floor was flooded with dirty water as the drainage system did not work properly. The hairdresser used the same hair-clipper for all detainees with no disinfection. Only one pair of scissors was available for nail cutting. No disinfection provided. Outside walks fully depended on the administration’s discretion: sometimes, every second day, sometimes – once a week. The applicant’s cellmates often suffered from tuberculosis, hepatitis, and scab or were HIV-positive. On 9 June 2006 the applicant cut his veins as a protest against the conditions of detention. Stitches were applied without pain killers and afterwards the applicant was thrown on the concrete floor, bleeding and with his arms and legs stretched apart and shackled. From 19 to 26 April 2007 the applicant was placed in a disciplinary cell (carcer); concrete floor was covered by water. No food or hot water was provided. As a result, he had a fever and was placed in the SIZO medical unit from 28 April to 4 May 2007. On many occasions the applicant was taken to court for hearings or to study the case file. Every time his journey took the whole day. He did not receive any food or water during the trips. Transportation was carried out in a prison van, which was originally designed for a maximum of ten passengers but which in reality contained fifteen to eighteen detainees whose hands were handcuffed behind their back. Before being placed in the van, the detainees were held in a small, airless and smoky preliminary reception cell. Upon return to the SIZO, the detainees had to wait for a long time in the van before being transferred to the preliminary reception cell where they also had to wait to be escorted to their cells. It was very cold in the prison van in winter and hot in summer. During the court hearings the applicant was not taken to the toilet. He had to take an empty plastic bottle with him so that during hearing breaks he could relieve himself. (b)     Kremenchuk Correctional Colony no. 69 (“prison”) From 2 October 2007 to 22 September 2009 the applicant was serving his sentence in the prison. Upon arrival, the applicant was put in quarantine for fourteen days. He was held in a cell of 13 square metres accommodating ten to twelve prisoners. Some of them suffered from HIV and tuberculosis. There was no daylight in the cell as the only small window was covered with metal bars and a grid was attached to it from the outside. The artificial light in the cell was very poor, with the only electric bulb of 40W. It was switched on around the clock. There was no natural or artificial ventilation in the cell. The toilet was not separated from the living area, had no flush and emitted a foul smell that had lingered in the air. The cell was infested by rats, mice and cockroaches. Outside walks were carried out not on a daily basis but at the discretion of the administration and lasted 20-30 minutes. During his stay in the prison, the applicant was placed in quarantine four times of fourteen days each. Three times, from 17 to 22 January, from 2 to 17 March 2009, and from 25 March to 26 June 2009, the applicant was placed in disciplinary cells. Some cells he shared with persons who suffered from tuberculosis. The cells were dark, humid and cold. The toilet had no flush and emitted smell. Outside walks were granted three times per week. Once per week the applicant had access to a shower. There was no hot water in the shower and the floor was flooded with dirty water. No visits or exchange of correspondence were allowed. The plank-bed was chained to the wall from 5 am. to 9 pm., so the applicant had to stand all this time although this was contrary to his medical prescription as there was no chair. The applicant’s walking stick was taken away. The applicant spent the remainder of his sentence in the following conditions. His cell measured 120 square metres and accommodated seventy to eighty prisoners. Many of them were HIV-positive, suffered from tuberculosis, hepatitis and fungal diseases. The cell was dirty and infested with parasitic insects. The light in the cell was very poor, with eight electric bulbs of 40W half of which did not work. The artificial ventilation in the cell did not work while most of the prisoners were smokers. In summer it was extremely hot in the cell and during the winter it was very cold. The music was switched on around the clock. There were no disinfection products available while all cellmates shared vessels, scissors and a needle. Shower, toilets and dining rooms were in unhygienic state as well. The toilets had no flash and emitted a foul smell. The food was of poor quality and often made from spoilt products. Detainees could use the showers once a week. The bathroom was equipped with fifteen shower taps with no possibility to adjust the water. 120-150 prisoners had only one hour for the whole process, including for getting to the bathroom which was 700 metres away from the cell. Thus, ten prisoners had to share one shower tap at the same time. The floor was flooded with dirty water as the drainage system did not work properly. The hairdresser used the same hair-clipper for all the prisoners with no disinfection. The meetings of the applicant with his mother, who was his official defender, were at the discretion of the prison administration. From 1   January to 22 September 2009 the applicant was also not allowed to send or receive correspondence as a punishment for breaching the prison rules. 3.     Medical care in detention (a)     SIZO On 5 October 2004 upon his arrival in the SIZO the applicant was examined by a general practitioner, a psychiatrist and a dermatologist and was found to be healthy. The medical staff refused to notice the traces of injuries on the applicant’s body (the applicant does not specify those traces) and did not provide him with the required medical assistance. During 2005, on a number of occasions, the applicant asked for a medical assistance, but this was refused. In 2006, the applicant’s started feeling strong pain in his back and legs and his health deteriorated. On 22 February 2006 the applicant was examined by a neurologist from Poltava Hospital no. 1. This had been done on the request of his mother and at her own expense. The applicant was diagnosed with the aftereffects of two closed craniocerebral injuries (in 1995 and 2000) with stamping gait syndrome, post traumatic spine disease, and vertebrogenic left-side radiculitis. The respective treatment was prescribed. From 26 March to 12 October 2006 the applicant was on hunger strike to protest against the charges brought against him and against his conditions of detention, including the lack of proper medical assistance. He was placed in a special cell and no medical assistance was provided to him. During the applicant’s placement in disciplinary cells (see above), he was not properly medically treated and medication brought by his mother was not given to him. (b)     Prison From 6 to 27 November 2007 and from 12 to 25 February 2008 the applicant underwent medical examination and treatment in the hospital of prison no. 100 in Kharkiv Region. All medication prescribed was provided by the applicant’s mother. On 22 February 2008 he was classified as having group III invalidity. On 19 January 2008 the applicant was examined by a neurologist from city hospital no. 3 invited by the applicant’s mother at her own expense. On 27 February 2008 he was diagnosed with chronic hepatitis   C. On 12 June 2008, upon the results of a voluntary blood test, the applicant was informed that he was HIV-positive. His request for transfer to a specialised medical establishment was rejected. On 10 October 2008 and 26 June 2009 the applicant was transferred for medical examination to the hospital of prison no. 10 in the Kherson Region. He was diagnosed with HIV in second clinical stage (feet onychomycosis), vertebrogenous radiculopathy in unstable remission stage, toxic polyneuropathy, light myoparesis of feet, tardive aftereffects of closed craniocerebral injuries (in 1985 and 1998), chronic hepatitis C in remission stage, and duodenal ulcer in remission stage. The applicant was re-assigned group III invalidity on account of central nervous system pathology. On 25 September 2009, at his release from prison, the applicant underwent the medical treatment in a tuberculosis dispensary and in the Poltava Centre for Fight against HIV/AIDS. On 13 January 2009 the applicant was classified as having group II invalidity. Throughout his detention the applicant regularly submitted complaints about the poor conditions of his detention and lack of the medical treatment to different State authorities. The majority of the complaints were eventually transferred for examination to the SIZO and prison governors, which led to threats on their part and on the part of the officials of the State Department for Execution of Sentences. The applicant also involved media and wrote to some newspapers and gave interviews for certain TV programmes. COMPLAINTS 1. Relying on Articles 3 of the Convention, he complains about the conditions of his detention in the SIZO and the prison, including his transport to and from courts, as well as about the lack of adequate medical treatment. 2. Invoking Article 13 of the Convention, the applicant states that his complaints about conditions of detention and medical treatment concern structural issues and that there were no effective means to remedy the situation complained of at the domestic level.   QUESTIONS   1.     Were the general conditions of the applicant’s detention in Poltava SIZO no. 23 and Kremenchuk Prison no. 69, including in disciplinary cells, as well as conditions of his transportation to the courts, compatible with Article 3 of the Convention?   2.     Was the applicant suffering from any serious health problems during detention? If so, did the applicant receive adequate medical treatment in respect of such health problems, as required by Article   3 of the Convention?   3.     Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 regarding his conditions of detention and medical treatment, as required by Article 13 of the Convention?     The Government are requested to submit a chronologically ordered information note on the medical assistance provided to the applicant in detention, as well as copies of all relevant documents.