FOURTH SECTION
CASE OF OSIPENKOV v. UKRAINE
(Application no. 31283/17)
JUDGMENT
STRASBOURG
29 January 2019
This judgment is final but it may be subject to editorial revision.
In the case of Osipenkov v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 8 January 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 31283/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Mikhaylovich Osipenkov (“the applicant”), on 27 April 2017.
2. The applicant, who had been granted legal aid, was represented by Ms N.G. Okhotnikova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna, of the Ministry of Justice.
3. On 23 May and 10 July 2017 the Court applied an interim measure under Rule 39 of the Rules of Court. Priority treatment was given to the case under Rule 41 of the Rules of Court. On 19 July 2017 the application was communicated to the Government.
4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1963.
6. From 22 July 2016 the applicant was held in the Chernigiv pre-trial detention centre (“the SIZO”) as a suspect in respect of a crime.
7. On 8 September 2016, while being held at the SIZO, the applicant suffered acute myocardial infarction. He was treated at Kozeletsk Town Hospital from 8 until 19 September 2016.
8. On 27 September and 6 October 2016 the applicant underwent examinations at the Chernigiv Regional Cardiological Centre. He was diagnosed with ischemic heart disease; acute myocardial infarction; third‑stage hypertonic disease; a hypertensive heart; and second-degree heart failure. The applicant was prescribed outpatient medical treatment and a further heart examination. On the last mentioned date he was recommended to undergo a cardiac ventriculography test.
9. On 7 February 2017, in response to a request for information lodged by the Chernigiv regional prosecutor’s office, Chernihiv City Hospital (“the Hospital”) noted that the applicant’s state of health posed a high risk to his life.
10. On 15 March 2017, the Hospital informed the SIZO authorities that the cost of a cardiac ventriculography test was 4,000 hryvnias (UAH – approximately 140 euros (EUR)). There is no information regarding whether that test was undertaken.
11. Following a deterioration in the applicant’s health, on 23 May 2017 the Court indicated to the Government under Rule 39 of the Rules of Court that they should immediately ensure that the recommended treatment was available and provided to the applicant and that the applicant was placed in a specialised medical institution for medical treatment – including surgery, if appropriate.
12. On 23 May 2017 the applicant was transported to the Hospital, where the previous diagnosis was confirmed (see paragraph 8 above). On the same day he was returned to the SIZO and provided with outpatient treatment.
13. On 25 May 2017 the Hospital informed the SIZO that in order for the applicant to be provided with qualified medical advice, he needed a cardiac ventriculography test. In view of the complexity of the applicant’s state of health, before the cardiac ventriculography test the Hospital requested that the applicant have an additional consultation at the Amosov Cardiology Institute.
14. According to the Government, the SIZO administration offered the applicant transportation to the Kyiv SIZO in a prison van with a view to his undergoing a further medical examination at the Amosov Cardiology Institute. On 16 June 2017 the applicant refused that offer, arguing that he could not be transported in a prison van owing to his state of health. The case file contains a statement by the applicant dated 16 June 2017 addressed to the head of the SIZO, according to which he did not refuse transportation but insisted on it being in a form that was compatible with his state of health.
15. Following a further deterioration in the applicant’s health, on 22 June 2017 the ambulance took him to the Hospital, where the previous diagnosis (see paragraph 8 above) was confirmed, electrocardiography and cardiac ventriculography tests were recommended, and he was prescribed some medication.
16. The case file contains an extract from the applicant’s medical file bearing no date and signed by the head of the SIZO medical unit; according to the extract, the SIZO had no cardiologist on its staff and high-quality medical treatment was not possible at the SIZO. The applicant did not receive the prescribed medication in full owing to a lack of funds. The extract furthermore stated that he remained under the supervision of the SIZO medical staff and did not require inpatient medical treatment.
17. On 10 July 2017 the Court reiterated its previous decision (see paragraph 11 above) indicating that the authorities were to ensure that the applicant was transported promptly, and in conditions commensurate with his state of health, to a specialised medical institution to undergo the necessary medical examinations, such as a cardiac ventriculography test, in order that a correct diagnosis could be made and the applicant could receive medical treatment, if necessary. On 8 August 2017 the Government submitted that the applicant had not been transported to a specialised medical institution, as had been indicated by the Court, owing to his refusal of 16 June 2017 (see paragraph 14 above).
18. According to the available information, from August 2016 until September 2017 the applicant underwent more than fifteen examinations, both within the SIZO and at civilian hospitals, and an ambulance was called twelve times to provide him with urgent treatment.
19. On an unspecified date the applicant was released from custody. On 7 November 2017 he underwent an examination at the Amosov Cardiology Institute. According to the results of the examination, he was diagnosed with ischemic heart disease, exertional angina (class III), postinfarction cardiosclerosis, and atherosclerosis of the aorta and of the coronary arteries. It was recommended that he undergo surgery for his ischemic heart disease, together with further inpatient treatment. There is no information regarding whether the applicant has undergone the recommended surgery and treatment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
20. The applicant complained that he had not been given access to appropriate medical assistance while detained and that he had had no effective domestic remedy in respect of the above-mentioned complaint. He relied on Articles 3 and 13 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
21. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Article 3
22. The applicant complained that he had not received adequate medical treatment for his heart disease.
23. The Government disagreed.
24. The applicable general principles in respect of medical treatment in detention have been summarised in Hummatov v. Azerbaijan (nos. 9852/03 and 13413/04, §§ 112‑22, 29 November 2007); Ukhan v. Ukraine (no. 30628/02, §§ 77‑83, 18 December 2008); Petukhov v. Ukraine (no. 43374/02, §§ 91‑98, 21 October 2010); and Sergey Antonov v. Ukraine (no. 40512/13, §§ 70‑75, 22 October 2015).
25. Turning to the circumstances of the present case, the Court notes at the outset that the thrust of the applicant’s complaint in the present case concerns the delayed examination of his heart disease in a civilian hospital. It furthermore notes that the medical condition the applicant suffered from (see paragraph 8 above) was serious enough to affect his everyday functioning. Therefore, he could have experienced considerable anxiety regarding whether the medical care provided to him was adequate.
26. The Court observes that the applicant was not entirely left without medical care while in detention. He received certain medication and underwent a number of examinations. However, the Court cannot subscribe to the Government’s argument that the level of medical care provided to the applicant was sufficient.
27. In this connection, the Court notes that the authorities have acknowledged that the SIZO medical unit was not sufficiently equipped and staffed to address the applicant’s cardiological illness (see paragraph 16 above). This element proves that the applicant received merely symptomatic treatment in response to a continued deterioration in his health (see paragraphs 15 and 18 above).
28. Next, it appears from the available documentary evidence that a determination of the strategy in respect of the applicant’s further treatment was possible only after a cardiac ventriculography test had been made (see paragraphs 13 and 15 above). Having been recommended for the first time in October 2016 (see paragraph 8 above), this examination, however, was never made.
29. The foregoing considerations are sufficient to enable the Court to conclude that the State failed to comply with its obligations under Article 3 of the Convention. There has accordingly been a violation of that provision.
2. Article 13
30. The Government disputed the applicant’s submissions and argued that there had not been a violation of Article 13 of the Convention.
31. The Court reiterates that it has already found a violation of Article 13 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning the lack of medical treatment (see, among other authorities, Sergey Antonov, cited above, § 96, with further references). It sees no reason to decide otherwise in the present case.
32. The Court therefore concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaint under Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
33. The applicant complained that the Government’s failure to promptly ensure his medical examination following the indication of the interim measure by the Court under Rule 39 of the Rules of Court had violated his right of individual application. He relied on Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
34. Rule 39 of the Rules of Court, in so far as relevant, provides:
“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
...
3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”
35. The applicable general principles are set out in Paladi v. Moldova ([GC], no. 39806/05, §§ 84-92, 10 March 2009).
36. The Court notes at the outset that on 23 May 2017 it decided to apply an interim measure under Rule 39 of the Rules of Court (see paragraph 11 above). On 10 July 2017, in view of the deterioration in the applicant’s state of health, the Court reiterated its previous decision (see paragraph 17 above).
37. In arguing that they had complied with the interim measure indicated on 23 May 2017, the Government referred to the fact that the applicant had refused, on 16 June 2017, the offered transportation to Kyiv for the purposes of his participating in a medical consultation (see paragraph 14 above). The Government have not provided any information showing that they attempted to comply with the Court’s decision of 10 July 2017.
38. In this connection, the Court cannot accept the Government’s opinion that by virtue of the applicant’s mere refusal they had been discharged from their obligation, as indicated by the Court, under Rule 39 of the Rules of Court, on 10 July 2017, namely that the authorities were to ensure that the applicant was transported promptly, and in conditions commensurate with his state of health, to a specialised medical institution to undergo the necessary medical examinations, such as a cardiac ventriculography test, in order that a correct diagnosis could be made and the applicant could receive medical treatment, if necessary. In view of the applicant’s state of health at the material time, his request to be transported in a specialised medical van was reasonable and even necessary. The Government however, failed to demonstrate that reasonable efforts had been made to ensure the applicant’s transportation to the Kyiv SIZO in conditions commensurate with his state of health.
39. The purpose of the interim measure indicated by the Court on 10 July 2017, as is apparent from its very wording, was to ensure that the applicant received appropriate medical assistance in detention while his case was pending before the Court. However, this purpose could not be achieved, since the SIZO authorities merely referred to the applicant’s previous refusal from transportation, without providing any justification for their omission.
40. In the light of the above, the Court finds that the State has frustrated the purpose of the interim measure, which sought to avoid the possible continued exposure of the applicant to physical and mental suffering and to protect his health and life. Accordingly, the Court concludes that the State did not fulfil their obligation to comply with the interim measure indicated by it under Rule 39 and that in the circumstances of the present case there was nothing to absolve them from that obligation. Accordingly, there has been a violation of Article 34 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
41. 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.”
42. The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage. He furthermore claimed 5,000 euros (EUR), which he submitted he would spend on cardiac surgery, and 2,000 euros (EUR) in respect of further rehabilitation.
43. The Government considered these claims unsubstantiated and excessive.
44. The Court cannot speculate as to the damage that might have been incurred by the applicant in the future; it therefore rejects this part of his claim. On the other hand, taking into account the applicant’s situation, it awards him EUR 4,000 in respect of non-pecuniary damage.
45. 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.
IV. RULE 39 OF THE RULES OF COURT
46. Given the fact that the factual circumstances that led to the application of Rule 39 of the Rules of Court in the present case have changed, notably by reason that the applicant was eventually released from custody (see paragraph 19 above), the Court considers that it is appropriate to discontinue the interim measure indicated to the Government.
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;
3. Holds that there has been a violation of Article 13 of the Convention;
4. Holds that there has been a violation of Article 34 of the Convention;
5. Decides to lift the interim measure indicated to the Government under Rule 39 of the Rules of Court;
6. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(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;
7. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 29 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea TamiettiGeorges Ravarani
Deputy RegistrarPresident
Full & Egal Universal Law Academy