CEDH · PRESS;GENERAL;ENG — 10 février 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS   066 10.2.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF GENNADIY NAUMENKO v. UKRAINE   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Gennadiy Naumenko v. Ukraine (application no. 42023/98). The Court held unanimously that:   ● there had been no violation of Article 3 (prohibition of torture or inhuman or degrading treatment) of the European Convention on Human Rights; ● there had been no violation of Article 13 (right to an effective remedy) of the Convention.   (The judgment is available only in French.)   1.     Principal facts   The applicant, Gennadiy Vasilyevich Naumenko, is a Ukrainian national who was born in 1964. He is currently serving a life sentence in Zhytomyr Prison.   On 26 April 1996 the Kharkiv Regional Court convicted him of two counts of murder, one count of attempted murder and one count of rape, and sentenced him to death. The convictions were upheld by the Supreme Court in July 1996 and he was transferred to “death row” in Kharkiv Prison no. 313/203. In June 2000 the sentence was commuted to one of life imprisonment.   On his arrival at Kharkiv Prison in August 1995 the applicant had been examined by a psychiatrist, who did not find him to be suffering from any mental disorder. However, following the dismissal of his appeal to the Supreme Court, the applicant showed signs of disturbance and his medical file indicates that he was psychopathic, had suicidal tendencies and was prone to aggression. He was placed under the supervision of a psychiatrist and in 1996 and 1997 was put on medication in the form of neuroleptics and psychoactive drugs that were administered orally or by injection.   While in Kharkiv Prison the applicant made several attempts to commit suicide by hanging. He alleged, among other things, that he was subjected to radiation from a “psychoactive drugs generator” and complained of repeated beatings and of being handcuffed for days on end.   Between May 1996 and September 2000 the applicant lodged more than 150 complaints with domestic and international bodies, in which he challenged the lawfulness of the judicial decisions in his case and alleged that he had been subjected to ill-treatment and torture.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 25 February 1998 and transmitted to the Court on 1 November 1998. It was declared partly admissible on 7 May 2002. On 26 and 27 September 2002 Court delegates went to Ukraine on a fact-finding mission. They took evidence from the applicant and witnesses and visited Zhytomyr Prison (no. 8) where the applicant is being held.   Judgment was given by a Chamber of 7 judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Loukis Loucaides (Cypriot), Corneliu Bîrsan (Romanian), Volodymyr Butkevych (Ukrainian), Wilhelmina Thomassen (Netherlands), Antonella Mularoni (San Marinese), judges , and also Sally Dollé , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant alleged that during his time in prison in the Kharkiv region from 1996 to 2001, he was subjected to treatment contravening Article 3 of the Convention: he had been wrongfully forced to take medication, given electric shocks, handcuffed without reason and subjected to radiation by a “psychoactive drugs generator”. He also complained under Article   13 of the Convention that he had no remedy in domestic law to complain of the treatment.   Decision of the Court   The Court observed that it only had jurisdiction to examine complaints it had declared admissible and that related to events that had occurred after the Convention entered into force with respect to Ukraine and were not entirely new or different from those covered by its admissibility decision. Accordingly, it would confine its examination to the applicant’s complaints under Articles 3 and 13 of the Convention for the period from 11 September 1997, when the Convention came into force with respect to Ukraine, until 14 July 2001, when the applicant was transferred from Kharkiv Prison to Zhytomyr Prison.   Article 3 of the Convention   Forced medical treatment Referring to its case-law, the Court reiterated that domestic authorities were required to protect the health of prisoners. No matter how disagreeable, therapeutic treatment could not in principle be regarded as contravening Article 3 of the Convention if it was persuasively shown to be necessary.   From the evidence of the witnesses, the medical file and the applicant’s own statements it was clear that the applicant was suffering from serious mental disorders and had twice made attempts on his own life. He had been put on medication to relieve his symptoms. In that connection, the Court considered it highly regrettable that the applicant’s medical file contained only general statements that made it impossible to determine whether he had consented to the treatment. However, it found that the applicant had not produced sufficient detailed and credible evidence to show that, even without his consent, the authorities had acted wrongfully in making him take the medication.   The Court saw no reason to question the description or dosage of the substances that were administered or to suspect that he been given other substances. Nor was there anything to suggest that the treatment had caused the applicant to suffer from side effects. As regards the period of treatment, it emerged from the discrepancies between the applicant’s statements and witnesses’ evidence that it had ended in January 1998.   The Court did not, therefore, have sufficient evidence before it to establish beyond reasonable doubt that the applicant had been forced to take medication in a way that contravened Article   3 of the Convention.   Unreasonable use of handcuffs The Court worked on the assumption that handcuffs were used as a means of restraining the applicant on two occasions: the first on 7 September 1997 and the second on 1 July 1998. It had no jurisdiction to hear the first allegation, as the Convention had not entered into force with respect to Ukraine by that date. As to the second, the Court found on the facts that the prison authorities had not restrained the applicant more than was necessary to calm him down and prevent him from using violence against himself or others, particularly as he had already made two suicide attempts. That measure could not, therefore, be termed “inhuman or degrading treatment”.   Likewise, in the light of all the circumstances surrounding the case, the Court accepted that forcing the applicant to wear handcuffs when not in his cell was justified in the interests of prison security. There was, therefore, no prima facie evidence of a violation of Article 3 of the Convention on this point.   The alleged beatings The applicant alleged that he had been subjected to beatings on five occasions during his spell in Kharkiv Prison: on 4 March 1998, 22   January and 21   February 1999, and 5 April and 4   May 2001. However, there was no satisfactory evidence before the Court that the applicant had been subjected to blows that would constitute “inhuman or degrading treatment” within the meaning of Article 3.   Other treatment complained of by the applicant The applicant complained that he had received electric shocks in his cell in mysterious circumstances. However, there was no evidence to support his allegations and the Court found them unfounded. The same applied to the allegation that he had been subjected to radiation through a “psychoactive drug generator”.   Article 13 of the Convention   The Court noted that under Ukrainian law it was the public prosecutor’s responsibility to examine prisoners’ complaints of ill-treatment or torture, to gather any necessary evidence and, if appropriate, visit the premises to interview the prisoner and prison staff. Various courses of action were open to the public prosecutor to ensure compliance with the State’s positive obligations under Article 3 of the Convention and his or her decisions could be reviewed.   In the case before the Court, it appeared that the applicant had lodged more than 150   complaints between May 1996 and September 2000 with various national and international bodies. A large number of the complaints had been lodged with the regional public prosecutor’s office. The applicant had met the public prosecutor several times and there was nothing to indicate that he had encountered any obstacles in making his complaints. The same applied to his written complaints, including those concerning his medical treatment which had led to an inquiry. The Court also noted that the applicant had received written replies to most of his complaints and had acknowledged that he had been able to see his lawyer at will.   There were even indications that, on being interviewed by the public prosecutor, the applicant had refused to provide him with details of the substance of his complaints. In that connection, the Court found that the applicant’s complaint of the lack of an effective investigation was unsustainable in view of his failure to cooperate with the public prosecutor, added to which he could have sought a review of the latter’s decisions. The domestic law afforded a remedy that was in principle effective, but the applicant had failed to use it. Consequently, there had been no violation of Article 13 of the Convention.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.