I correctly predicted that there was a violation of human rights in IVASHCHENKO v. UKRAINE.

Information

• Judgment date: 2020-09-10
• Communication date: 2014-10-23
• Application number(s): 41303/11
• Country:   UKR
• Relevant ECHR article(s): 3, 5, 5-1-b, 5-1-c
• Conclusion:
  Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
  Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.759616
• Prediction: Violation

• Consistent

Communication text used for prediction

THE FACTS The applicant, Mr Valeriy Volodymyrovych Ivashchenko, is a Ukrainian national, who was born in 1956 and lives in Kyiv.
At the time of lodging his application, he was in pre-trial detention in Kyiv SIZO no.
13.
He is represented before the Court by Ms V. V. Telychenko and Ms G. O. Senyk, lawyers practising in Kyiv and Lviv.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
1.
Criminal proceedings brought against the applicant The applicant was the Minister of Defence in the Government of Julia Tymoshenko until 11 March 2010.
On 20 August 2010 criminal proceedings were instituted against him on suspicion of attempted abuse of power under Article 364 § 2 of the Criminal Code.
The applicant was suspected of exceeding his authority and abusing his office in signing the financial rehabilitation plan of the State enterprise, Feodosia Ship & Mechanical Plant, which resulted in the loss of the State property.
On 21 August 2010 the applicant was arrested and taken to SIZO no.
13 in Kyiv.
On 24 August 2010 the Pechersk District Court (hereinafter “the District Court”) ordered his pre-trial detention as a preventive measure, shortly referring to Article 106 of the Code of Criminal Procedure which entitles the authorities to arrest a suspect when “eyewitnesses, including victims, directly identify this person as the one who committed the offence”.
On 20 October 2010 the applicant’s lawyers applied to the District Court with a request to have acquaintance with the materials of the prosecution, which served as a basis for the decision of 18 October 2010 by which the applicant’s detention had been extended until 21 December 2010.
In a letter of 22 October 2010 the District Court replied that in accordance with the Code of Criminal Procedure there was no right to have acquaintance with the materials of the investigation bodies, unless they give a permission to do so.
On 25 October 2010 the Solomyansky District Court of Kyiv dismissed the applicant’s request on termination of the criminal proceedings against him.
On 29 October 2010 the Prosecutor General Office instituted new criminal proceedings against the applicant on suspicion of abuse of power under Articles 27 § 5 and 365 § 3 of the Criminal Code.
On 1 November 2010 the investigation was completed and the applicant was charged with being involved in illegal removal of State property under Articles 27 § 5, 365 § 3 and 364 § 2 of the Criminal Code.
On 29 March 2011 the District Court dismissed the applicant’s request to submit the case for additional investigation.
In a judgment of 12 April 2012 of the District Court found the applicant guilty as charged and sentenced him to five years’ imprisonment, banning him, at the same time, from occupying State positions for three years.
According to the applicant, he was kept in a metal cage during the court hearings.
In a judgment of 14 August 2012 the Kyiv Court of Appeal changed the first instance judgment, convicting the applicant to a suspended sentence with a one-year probation period.
On the same day, the applicant was released from detention.
2.
Detention of the applicant On 21 August 2010 the applicant was invited to give testimony as a witness.
Upon his arrival, he was arrested and taken in detention as a defendant.
On the same day, he was transferred to SIZO no.
13 in Kyiv.
There is no document in the case file concerning the applicant’s arrest.
On 24 August 2010 the District Court decided that the applicant was to be kept in custody as a preventive measure.
It stated there was a suspicion that the applicant had committed the criminal offence which was punishable by more than three years’ imprisonment, that he could attempt to jeopardize the investigation, influence witnesses with the aim to evade criminal liability.
In reply to the argument of the applicant’s lawyer that there had been no reason to arrest the applicant under Article 106 of the Code of Criminal Procedure, the court stated that from testimonies given by witnesses it appeared that the applicant had been directly involved in the criminal offence of abuse of power.
On 31 August 2010 the Kyiv Court of Appeal dismissed the applicant’s appeal against the detention order, agreeing with the reasons for the detention advanced by the District Court.
On 18 October 2010 the District Court extended the applicant’s detention until 21 December 2010 on the ground that there was a risk that the applicant would influence the witnesses or abscond if released taking into account that he had a travelling passport and could, therefore, avoid his criminal liability.
Moreover, certain further investigation steps needed to be carried out.
On 28 October 2010 the Court of Appeal upheld the previous decision, stating that the further investigation steps should be carried out.
It also noted that the applicant’s state of health was compatible with the detention measure.
On 20 December 2010 the District Court again extended the applicant’s pre-trial detention for up to five months.
It stated that the applicant was suspected to commit a serious criminal offence, that there was a risk that the applicant could escape if released and jeopardize the investigation.
On 18 January 2011 the District Court extended the applicant’s detention for up to five months and fifteen days on the same grounds.
On 27 January 2011, in reply to the Ombudsman of Ukraine, the prosecutor stated that the applicant was receiving adequate medical aid in detention and that his release was impossible in the view of the gravity of the criminal offence he was charged with.
On 4 March 2011 the District Court decided that the applicant would remain in pre-trial detention for an unspecified period.
The court did not specify any particular reason for the applicant’s continuing detention, stating that there was no ground to change the preventive measure into a written undertaking not to leave his place of residence.
On 7 April 2011 the court rejected the applicant’s request to terminate the pre-trial detention for medical reasons.
It noted that the applicant could abscond if released and jeopardize the investigation.
On 16 June 2011 the District Court dismissed the applicant’s new request for release for medical reasons, having no relevant documents in the case file indicating that the state of health of the applicant did exclude his detention.
On the same day, the applicant started a hunger strike for an unlimited period of time in protest against his deprivation of liberty.
On 13 July, 1 and 19 August, 20 September, 27 October, 14 December 2011, and 23 January 2012 the applicant requested to be released referring to an urgent need of in-patient treatment in other medical conditions.
All his requests were rejected.
On 7 September 2011 more than twenty members of Parliament requested the District Court to release the applicant and offered their personal guarantee that he would not escape.
On 28 October 2011 the District Court rejected their request.
It noticed that under the Code of Criminal Procedure, a personal guarantee may be given only in person at trial.
On 20 January 2012 the Ombudsman of Ukraine sent a letter to the President of the District Court, upon a request of the applicant’s wife.
She requested the court to change the measure of pre-trial detention into any measure which would not limit her husband’s freedom, referring to his state of health.
On 23 February 2012 eighteen members of Parliament submitted a new request for the applicant’s release.
On 14 August 2012 the applicant was released, following the judgment of the Court of Appeal which had changed his prison sentence imposed by the District Court to a suspended sentence of imprisonment.
3.
The applicant’s medical treatment in the SIZO The applicant has been suffering, inter alia, from chronic spinal osteochondrosis with persistent pain, post-traumatic instability segment C4-C5, deforming arthritis of the right knee, cerebral atherosclerosis, kidney problems, chronic prostatitis since 1995 and has been undergoing medical treatment in the Main Military Clinical Hospital twice a year for 17 years to prevent worsening of his state of health.
In mid-April 2011 the applicant lost all sensation in his toes and later in his feet.
On 20 and 24 May 2011 the applicant was examined in the Kyiv Emergency Hospital which identified new diseases of the applicant, allegedly due to his detention in the Kyiv SIZO, i.e.
coronary heart disease, atherosclerotic cardio sclerosis, hypertension, chronic bronchitis, chronic pancreatitis, which are typical consequences of a prolonged imprisonment in infected by mildew cells.
SIZO doctors confirmed the diagnosis of the civilian doctors.
According to a note issued by the Main Military Clinical Hospital (hereinafter “the MMCH”) on 2 June 2011, the applicant was suffering from a number of chronic diseases including aggravated spine radiculitis at a stage which required in-patient medical treatment at least twice a year.
On 9 June 2011 the Head of the MMCH issued a medical certificate which confirmed that the applicant had been a regular patient in that hospital from 1995 to 2009 where he underwent treatments for spinal osteochondrosis, with persistent pain, post-traumatic instability segment C4-C5, deforming arthritis of the right knee, cerebral atherosclerosis, subcortical dementia, kidneys problems, and chronic prostatitis.
On 22 July 2011 the State Penitentiary Service of Ukraine (hereinafter “the SPS”) reported that: “... after a comprehensive medical examination of the applicant ordered by the Pechersk District Court on 13 July 2011, the applicant is advised to undergo treatment in the neurological department of a civilian hospital, since there is no neurological department in the medical unit of the Kyiv SIZO and there is no neurologist in the medical unit’s staff of the Kyiv SIZO.” On 18 August 2011, in reply to a request from the applicant’s lawyer, the MMCH stated, inter alia, that the applicant’s health had deteriorated in detention, that he needed regular inpatient treatment at least twice a year, that his treatment should include vasoactive, nootropic and chondroprotective therapy, underwater vertical skeletal extension, massage, physiotherapeutic manipulations, acupuncture, hydro-kinesitherapyand medical gymnastics.
It also pointed out that there was aggravation of a chronic disease related to a dysfunctional disorder or a pain which could not be treated as an out-patient and that, consequently, the applicant should receive in-patient treatment.
These two statements were based on the medical documents from the Kyiv City Emergency Hospital, Kyiv City Clinical Endocrinologic Centre and the SIZO medical unit for 2010-2011 provided by the applicant’s lawyer.
On 29 September 2011 the applicant was examined by a panel of doctors from the SPS and the Ministry of Health.
As a result of the examination, the applicant was diagnosed with the acute right-sided ischio-radiculitis with pain and static/dynamic dysfunction of the vertebral column, cervical and lumbar osteochondrosis of the spine, dysfunction of the vertebral column, cerbical and lumbar osteochondrosis of the spine, dyscirculatory encephalopatny of the 1st-2nd degree with venous outflow impairment.
The applicant was prescribed the outpatient treatment, i. e. diclofenac solution (to relieve pain and treat inflammation), Omez (to protect the mucous coat of the stomach during the consumption of nonsteroidal anti-inflammatory drugs), L-Lysine Aescinat solution (to remove the oedemas, Neurorubine solution (a vitamin complex), Dolobene Gel (anti-inflammatory and antiedematous medication), Promax (pain relief medicine).
The doctors also recommended further examinations, i.e.
magnetic resonance tomography examination and complete clinical blood count analysis.
On the same day a blood analysis was carried out for the applicant.
In a letter of 12 October 2011 to the applicant’s lawyer, the Chief Doctor of Shevchenkivskyy District Policlinic no.
2 stated that the applicant was suffering from radiculitis with an acute pain syndrome and the spine functional disorder which warranted his urgent hospitalisation to a neurological hospital.
According to him, the permanent pain syndrome and the right leg numbness indicated a risk of paralysis and might require surgery.
He mentioned that the adequate treatment could be provided to the applicant in clinics nos.
18 or 9, in private hospitals or in the Neurological Department of the Kyiv Military Hospital where the applicant had been treated in the past.
On 11 November 2011 a neurological examination of the applicant was carried out by a neurologist from Shevchenkivsky District Clinic no.
2.
That examination revealed that the applicant had the following conditions: vertebragenous right-sided ischio-radiculitis, moderate pain syndrome in the context of complicated lumbar osteochondrosis with statokinetic dysfunction of the vertebral column.
The applicant was prescribed the following outpatient treatment: L-Lysine Aescinat solution, Actobegin solution (to improve blood circulation), Movalis (to relieve pain and treat inflammation), Discus Compositum (homeopathic medication to treat musculoskeletal disorders, especially spine-related conditions), Mucosatum (to treat degenerative and inflammatory spine and joint diseases).
The doctor also recommended that the applicant undergo a magnetic resonance tomography examination, general blood and urine tests, courses of massage, exercise therapy and physiotherapeutic procedures.
On 16 November 2011 analyses of the applicant’s blood and urine were carried out.
On 11 January 2012 the applicant was examined by a panel of the SPS and Ministry of Health doctors.
As a result of the examination, the applicant was diagnosed with the vertebragenous chronic right-sided ischio-radiculitis, moderate pain syndrome in the context of complicated lumbar osteochondrosis with statokinetic dysfunction of the vertebral column.
The applicant was prescribed Mucosatum, Movalis, Discus Compositum, Dexalgin solution, Nalbulphine and Promax.
The doctors recommended a magnetic resonance tomography examination, another general analysis of blood and urine, courses of massage, exercise therapy, physiotherapeutic procedures, up to two litres of fluid intake per day, and supervision by a doctor.
On the same date the applicant’s blood and urine analyses were carried out as recommended.
In a letter of 17 January 2012 to the applicant’s lawyer the Chief Doctor noted that the applicant’s examination of 11 January 2012 had established a deterioration of his health in comparison with his earlier examinations of 29 September and 11 November 2011.
Namely, the muscle atrophy was aggravating.
Moreover, during the period from 29 September 2011 to 11 January 2012, the recommendations of the neurologist were implemented only in part.
To be maximally efficient, the applicant’s treatment should include medication, physiotherapy and other methods of treatment.
According to the Chief Doctor, absence of the timely treatment for the applicant might lead to deterioration of his spine dysfunction.
On 17 January 2012 the applicant underwent a magnetic resonance tomography examination of the thoracic spine and an X-ray of the lumbosacral region of the spine.
On 17 January 2012 the ambulance which was called to the applicant in the Kyiv SIZO stated the following: “ ... the applicant was examined by Dr. [G.], neurologist who certified that the applicant’s state of health has worsened since his examination in September and November 2011 and that his muscles has started to atrophy.
This happened as a result of non-compliance with recommendations on the applicant’s treatment, since the applicant could not have been treated successfully in the medical unit of the Kyiv SIZO and he was not hospitalized to a specialized medical institution despite explicit and repeated recommendations by different doctors.
Any further delay of the neurological treatment in a specialized medical institution might cause irreparable changes in functioning of the applicant’s spine.” The medical examinations of the applicant on 29 September, 11 November 2011 and 11 January 2012 were carried out.
They add that the applicant was taken for blood and urine test on 16 November 2011, that on 17 January 2012 he underwent a magnetic resonance tomography examination of his thoracic spine and an x-ray of his lumbosacral region of his spine.
The applicant was further examined on 23 February 2012 by a panel of the SPS and the Ministry of Health.
He was diagnosed with generalised cervical and lumbar osteochondrosis with intervertebral disc protrusion, protrusion of discs in the form of radioculopathy, insignificant pain syndrome, vertebral body haemangioma, dyscirculatory encephalopathy.
He was prescribed anti-inflamantory homeopathic medication, drugs to support his nerve tissue, to restore and protect his cartilages.
He was also recommended to exercise, undergo massage and physiotherapeutic treatment.
On 29 March 2012 the applicant was seen by a panel of the SPS, a neurologist from Kyiv Clinical Hospital no.
18 and the head of the Neurosurgery Department of the Oleksandriv Clinical Hospital in Kyiv.
The doctors generally confirmed the previous diagnoses.
According to them, there was no need to provide the applicant with neurosurgical treatment.
He was prescribed exercise therapy, further physiotherapeutic treatment by Bernard’s currents and arterial pressure monitoring.
The applicant himself stated that the medical treatment prescribed on 23 February 2012 had a positive effect on his health and he also mentioned a wider range of movements and reduction of pain.
On 6 April 2012 the applicant was examined by a panel of doctors from the SPS and the Ministry of Health which concluded that his health was satisfactory and that he did not require in-patient medical treatment outside the SIZO.
The applicant contests those findings as inaccurate noting in this respect that the court hearing of 9 April 2012 was moved to different premises (a ground floor instead of an upper floor room initially designated).
The applicant was taken to the court room by an ambulance, in the presence of four medical specialists.
While the new room was not adapted for hearings (no windows, in particular), it was convenient for bringing him in on a stretcher.
The applicant was lying during the hearing because of the permanent acute spine pain.
On 24 May 2012 the applicant was examined by two neurologists Dr. T. and Dr. G. in the presence of the Head of the medical unit of the Kyiv SIZO and another member of this unit.
The results of the examination were described in the medical examination protocol of written on the same day and signed by all these doctors.
Dr. T. and Dr. G. insisted that they want to receive a copy of the protocol.
The applicant also asked for a copy.
However, his request was dismissed by the Head of the medical unit.
According to the applicant, Dr. G. and Dr. T. were searched before they left the Kyiv SIZO by prison guards who took away the copies of the protocol.
By the end of the day of 25 May 20112 the applicant had not received a copy of the medical examination act.
From the oral recommendations of Dr. T. and Dr. G., the applicant learnt that the doctors advised him to undergo an additional magnetic resonance tomography (MRT) of his spine and a neurological examination of his limbs.
The applicant lost feelings in his lower limbs and suffered from acute pain in the lumbar section of his spine.
He was given the strongest painkillers which are available in Ukraine but which are, however, both addictive and dangerous for his heart condition.
On 7 June 2012 the MRT of the applicant’s vertebral column was carried out.
On the same day, the electroneuromyography (ENMG) was carried out.
On 12 June 2012 the applicant applied to the Governor of the Kyiv SIZO, requesting him to permit the doctors who had examined him on 24 May 2012 and had recommended the mentioned medical examinations to carry out his medical re-examination in the light of the MRT and ENMG.
On the next day, the applicant was examined by two neurologists Ms H. and Mr T. in the SIZO.
Given the MRT and ENMG results and the applicant’s state of health, the doctors recommended that he should take L‐Lysine Aescinat, Mydocalm, Mucosatum, Pentoxifylline, Actovegin, Neiromidin, Keltican, apply Diclac gel and Dolobene gel, ten ultrasound procedures and ten sessions of manual therapy.
The SIZO medical unit was able to provide the applicant rapidly with the medical inpatient treatment.
The applicant stayed under close supervision by a therapist of the Kyiv SIZO.
The applicant’s treatment started on 22 June 2012.
The applicant was receiving three medicines bought by his wife on the basis of the recommendations of the civilian doctors.
The medicines, contrary to the doctors’ recommendations, were given to the applicant on an irregular basis in the medical unit of the Kyiv SIZO.
The applicant remained in his prison cell and each time he had to get an injection he had to walk four flights of stairs which was very difficult as he walked with crutches.
Since the applicant started to receive a rehabilitation therapy in the Schevchenko District Hospital, he had to be transferred each time to this hospital in a special prison metal van, which had no air-conditioning and was divided into small cages with metal benches.
By the time the applicant got in the van the temperature in the van was above 40o C. The metal van also had no shock absorbers.
The applicant, who was suffering from the intervertebral hernia and was wearing a thoraco lumbar corset, required strong painkillers after each trip to and from the hospital due to the worsening of his health condition.
On 25 July 2012 the applicant submitted a request to the administration of the Kyiv SIZO to be examined by a professor in neurology and neurosurgery M.P.
who could express freely his opinion without fearing any persecution by the Government.
Professor P. agreed to examine the applicant on 30 July 2012 but the administration of the Kyiv SIZO did not give its permission.
B.
Relevant domestic law The relevant provisions of the Criminal Code 2001, Code of Criminal Procedure 1961, Health Care Act 1992 and Pre-Trial Detention Act 1993 are summarised in the Court’s judgment in the case of Tymoshenko v. Ukraine (no.
49872/11, §§ 175-176, 178-179, 30 April 2013 and Lutsenko v. Ukraine, no.
6492/11, § 42, 3 July 2012).
In addition, under Article 156 of the Code of Criminal Procedure 1961, which concerns custody periods, custody at the stage of pre-trial investigation may not last more than two months.
C. Relevant materials of the Council of Europe The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009 (published on 23 November 2011) read as follows: “6.
Health care a. introduction 123.
In the course of the 2009 visit, the delegation was informed of a proposal to set up a working group to study the transfer of prisoners’ health care to the Ministry of Health.
The CPT can only encourage this initiative, which is consistent with the remarks made in paragraph 142 of the report on its 1998 visit, namely that a greater involvement of the Ministry of Health in the provision of health-care services in prison will help to ensure optimal health care for prisoners, as well as implementation of the general principle of the equivalence of health care with that in the outside community.
The Committee wishes to be informed of the action taken on the above‐mentioned proposal.
In this context, the CPT also wishes to stress the need for continued professional training for prison health-care staff, with a view to enabling them to perform their duties satisfactorily.
The Committee would like to be informed of the national policy in this respect.
124.
The reports on previous visits by the CPT to Ukraine contain a number of recommendations, comments and requests for information in the area of provision of health care to prisoners.
Despite efforts made by the Ukrainian authorities in recent years and the goodwill and commitment of health-care staff at the penitentiary establishments visited, the provision of health care to inmates remains problematic, due to the shortage of staff, facilities and resources.
During the visit, the delegation heard a number of complaints from prisoners at the establishments visited concerning delays in access to a doctor, lack of medication, and the inadequate quality of care.” The relevant extracts from the response of the Ukrainian Government to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Ukraine from 29 November to 6 December 2011: “Regarding detained Valeriy Ivashchenko On arrival to Kyiv pre-trial detention facility he was screened by doctors, and the corresponding diagnosis has defined for him, and the recommendations were made.
Therapist supervision and ambulatory treatment were prescribed.
In 2012 for examination and treatment of Mr. Valeriy Ivashchenko 11 boards of specialists of the Ministry of Healthcare of Ukraine of highest professional qualification were created, Mr. Valeriy Ivashchenko refused to undergo board screening once (on April 11, 2012).
Personal doctors of Mr. Valeriy Ivashchenko were twice admitted to the territory of Kyiv pre-trial detention facility for consultation.
On January 17, 2012 and on June 7, 2012 he was taken out of the premises of pre-trial detention facility to Romodanov Neurosurgery Institute, where he underwent examination: electroneuromyography, MRT of lumbosacral spine.
Twice he was taken for consultation out of the premises of the pre-trial detention facility to Kyiv municipal dental policlinic.
Health condition of Mr. Valeriy Ivashchenko is monitored by medical staff of Kyiv pre-trial detention facility and specialists of the Ministry of Healthcare of Ukraine.
Currently, treatment in a specialized healthcare institution is not required for him.
Provision of medical assistance to convicts Julia Tymoshenko and Juriy Lutsenko and detained Valeriy Ivashchenko is carried out in accordance with legal framework on healthcare in Ukraine.” D. International Materials with Respect to Healthcare Arrangements in Detention Facilities The relevant international materials with respect to healthcare arrangements in detention facilities are indicated in the judgment in the case of Ukhan v. Ukraine (no.
30628/02, § 50, 18 December 2008).
COMPLAINTS 1.
The applicant complains that he received inadequate medical treatment in prison.
He relies in this respect on Article 3 of the Convention.
2.
Under the same provision, he complains that in the course of the hearings in the court of first instance, he was kept in a metal cage, which constituted a treatment was degrading for him.
3.
Invoking Article 5 § 1 (b) and (c) of the Convention, the applicant complains that his detention from 21 August 2010 to 12 April 2012 was unlawful.
4.
He further alleges that his pre-trial detention had been unreasonably lengthy.
He relies in this respect on Article 5 § 3 of the Convention.
5.
The applicant claims to be a victim of a breach of Article 5 § 4 of the Convention due to the lack of equality of arms in the proceedings relating to his detention.
According to him, the courts came to the conclusion that he had to be kept in detention only on the basis of the investigation materials provided by the State officials, and did not take into account evidence submitted by him.
In addition, he had no access to the documents which were essential for him when the courts decided whether to remand him in custody or to release him.
6.
The applicant finally alleges, under Article 8 of the Convention, that he was subjected to secret surveillance without sufficient safeguards against arbitrariness.
He notes that while the criminal proceedings against him were instituted on 20 August 2010, the State Security investigators would carry out several investigation steps already on the next day, which, according to him, was technically impossible.
In addition, the records of the investigation steps were not included into the case-file which made it impossible for him to challenge their lawfulness.