I correctly predicted that there was a violation of human rights in LOGVINENKO v. UKRAINE.
Information
- Judgment date: 2019-05-16
- Communication date: 2018-03-14
- Application number(s): 41203/16
- Country: UKR
- Relevant ECHR article(s): 3, 13
- Conclusion:
Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture
Inhuman treatment)
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture
Degrading treatment) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.900078
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Mr Aleksandr Vladimirovich Logvinenko, is a Ukrainian national who was born in 1976 and is currently serving a life sentence.
Since 17 March 2014 he has been detained in Dnipropetrovsk Prison no.
89 (“Prison no.
89”).
He is represented before the Court by Ms A.L.
Yushchenko and Mr D.I.
Mazurok, lawyers practising in Kyiv.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date between 13 August 2008 and 3 December 2010, during medical treatment in the hospital of Kherson Prison no.
61, the applicant was diagnosed with active chronic hepatitis C (HCV).
Between 2013 and 2016 the applicant underwent certain medical examinations, and he was prescribed hepatoprotectors and a special diet.
During his detention in Prison no.
89 the applicant was kept in solitary confinement in a cell measuring 5.25 sq.
m, and was allowed a daily outside walk lasting one hour.
On 14 January 2016 the medical unit of Prison no.
89 issued a certificate stating that they were unable to perform special medical tests on the applicant which would have to be carried out in private laboratories, and they were also unable to provide him with appropriate medical treatment for his hepatitis C due to a lack of funds.
On 18 January 2016 the prison authority of the Dnipropetrovsk Region replied to a request by the applicant for medical treatment of his hepatitis C, reiterating the same information provided in the certificate of 14 January 2016.
According to information from the prison authorities dated 2 August 2016 and addressed to the Agent of the Government of Ukraine before the European Court of Human Rights, it was not possible to provide diagnostic and further medical treatment of the applicant’s hepatitis C in accordance with the national unified clinical protocol.
According to a letter from the applicant of 29 November 2017, he has not yet received diagnostic and further medical treatment for his hepatitis C. COMPLAINTS The applicant complains under Article 3 of the Convention that he was not given access to appropriate medical assistance while detained in Dnipropetrovsk Prison no.
89, and that the conditions of his detention there from 17 March 2014 onwards were inadequate.
He also complains under Article 13 of the Convention that he did not have an effective domestic remedy for his complaints under Article 3 of the Convention.
Judgment
FIFTH SECTIONCASE OF LOGVINENKO v. UKRAINE
(Application no. 41203/16)
JUDGMENT
STRASBOURG
16 May 2019
This judgment is final but it may be subject to editorial revision. In the case of Logvinenko 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 25 April 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 July 2016. 2. The applicant was represented by Mr M. O. Tarakhkalo, Ms A. L. Yushchenko, Ms O. O Protsenko, Ms O. R. Chylutyan and Mr D. I. Mazurok, lawyers practising in Kyiv. 3. Notice of the application was given to the Ukrainian Government (“the Government”). THE FACTS
4. The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant alleged that he did not receive adequate medical care in detention. The applicant also raised other complaints under the provisions of the Convention. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
6. The applicant complained principally that he was not afforded adequate medical treatment in detention. He 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 applicant suffered from serious medical conditions, as indicated in the appended table, which affected his 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 applicant’s 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), and Sergey Antonov v. Ukraine, no. 40512/13, §§ 76-90, 22 October 2015). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicant did not receive comprehensive and adequate medical care whilst in detention. 10. This complaint is therefore admissible and discloses a breach of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
11. The applicant also complained that no effective domestic remedies regarding his complaint about the quality of the medical care in detention were available to him. His complaint falls 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 applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
14. The applicant submitted another complaint under Article 3 of the Convention, concerning the conditions of his detention, which also raised issues given the relevant well-established case-law of the Court (see appended table). He further argued that he did not have any effective remedy within the meaning of Article 13 of the Convention in respect of the conditions in which he had been detained. 15. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor they are 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). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. 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.”
17. Regard being had to the documents in its possession and to its case‐law (see, in particular, Logvinenko v. Ukraine, no. 13448/07, §§ 89-95, 14 October 2010), the Court considers it reasonable to award the sum indicated in the appended table and it rejects any additional claims for just satisfaction raised by the applicant. 18. 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. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention on account of the inadequate medical care in detention;
3. Holds that there has been a violation 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;
4. Holds that there has been a violation of Articles 3 and 13 of the Convention on account of the inadequate conditions of detention and the lack of an effective domestic remedy in this respect (see appended table);
5. Holds
(a) that the respondent State is to pay the applicant, within three months, the amount 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 16 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtSíofra O’Leary
Acting Deputy RegistrarPresident
APPENDIX
Application raising complaints under Article 3 of the Convention
(inadequate medical treatment in detention)
Application no. Date of introduction
Applicant’s name
Date of birth
Principal medical condition
Shortcomings in medical treatment
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expense per applicant (in euros)[1]
41203/16
12/07/2016
Aleksandr Vladimirovich Logvinenko
23/07/1976
Hepatitis
lack of/delay in medical testing
24/04/2015
pending
More than 3 years, 10 months and 26 days
Art. 3 - inadequate conditions of detention
facility: Dnipropetrovsk correctional colony no. 89;
dates: 17/03/2014 and pending;
specific grievances: inadequate temperature, lack of fresh air, no or restricted access to shower, lack or insufficient quantity of food, lack of or insufficient physical exercise in fresh air, lack of requisite medical assistance,
Art. 13 - lack of any effective remedy in respect of inadequate medical treatment in detention and against poor conditions of detention
13,500
Application no. Date of introduction
Applicant’s name
Date of birth
Principal medical condition
Shortcomings in medical treatment
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expense per applicant (in euros)[1]
41203/16
12/07/2016
Aleksandr Vladimirovich Logvinenko
23/07/1976
Hepatitis
lack of/delay in medical testing
24/04/2015
pending
More than 3 years, 10 months and 26 days
Art. 3 - inadequate conditions of detention
facility: Dnipropetrovsk correctional colony no. 89;
dates: 17/03/2014 and pending;
specific grievances: inadequate temperature, lack of fresh air, no or restricted access to shower, lack or insufficient quantity of food, lack of or insufficient physical exercise in fresh air, lack of requisite medical assistance,
Art. 13 - lack of any effective remedy in respect of inadequate medical treatment in detention and against poor conditions of detention
13,500
[1]. Plus any tax that may be chargeable to the applicant.