CASE OF PIVOVARNIK v. UKRAINE

FIFTH SECTION

CASE OF PIVOVARNIK v. UKRAINE

(Application no. 29070/15)

JUDGMENT

STRASBOURG

6 October 2016

FINAL

06/01/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Pivovarnik v. Ukraine

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 13 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 29070/15) 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 Yuriy Stepanovich Pivovarnik (“the applicant”), on 16 June 2015.

2. The applicant was represented by Ms I. Monina, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

3. The applicant alleged, in particular, that while held in detention he had not been provided with adequate medical assistance for his hepatitis.

4. On 14 October 2015 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

5. Written submissions were received from the All-Ukrainian Network of People Living with HIV/AIDS (Всеукраїнська мережа людей які живуть з ВІЛ/СНІД – hereinafter “the All-Ukrainian Network”), which had been granted leave by the President of the Section to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977 and prior to his arrest his permanent address had been in Svitlovodsk, Kirovograd Region.

7. On an unspecified date prior to his arrest the applicant had been diagnosed with hepatitis C (“HCV”).

A. Criminal proceedings against the applicant

8. On 26 June 2014 the applicant was arrested on suspicion of committing a drug-related offence and on 7 July 2014 placed in Kirovograd Remand Prison no. 14 (“the prison”).

9. On 27 June 2014 the Svitlovodsk Court remanded the applicant in custody. The applicant appealed, arguing in particular that he was suffering from HCV. On 14 July 2014 the Kirovograd Regional Court of Appeal upheld the detention order.

10. The applicant’s pre-trial detention was subsequently extended until his conviction.

11. On 24 March 2015 the Svitlovodsk Court convicted the applicant of the unlawful purchase, possession and transportation of drugs and sentenced him to three years’ imprisonment.

12. On 13 October 2015 the Kirovograd Regional Court of Appeal amended the applicant’s sentence and released him on probation.

B. Medical assistance in detention

13. On 8 July 2014 the prison governor sent a letter to the Svitlovodsk Central Hospital. According to the letter, the applicant had informed the prison authorities that he had been diagnosed with HCV in 2013 in Svitlovodsk but that he had not provided any more detailed information in this respect. The governor asked the hospital to confirm whether the applicant had indeed been examined for HCV and if so, what the results of the examination had been. The prison received no reply.

14. On 6 August, 27 November and 3 December 2014 and on 9 January and 4 June 2015 the applicant consulted the prison doctor, complaining in particular of discomfort in the hypochondrium (below the lower ribs), on the right-hand side. According to the applicant’s medical record, the applicant claimed to be suffering from HCV, but the doctor noted that there were no documents to support this diagnosis. The applicant asked for a medical certificate, to be provided to the courts examining his criminal case. According to three separate reports signed by three prison employees, during three of those consultations – those of 6 August and 27 November 2014 and 4 June 2015 – the applicant was offered an opportunity to undergo a “blood test” (it is unspecified of which type) to verify whether he had HCV but refused without giving any reasons. The applicant denied the latter allegation.

15. On 13 August 2014 the prison’s medical unit issued a certificate stating that the applicant, according to his own statement, was suffering from HCV and that during his stay in the prison he had consulted the prison doctor on several occasions in this connection and received treatment for his symptoms.

16. On 3 December 2014 the prison governor informed the applicant’s lawyer that on 6 August and 27 November 2014 the applicant had consulted the prison doctor concerning his HCV and had been prescribed treatment for his symptoms. The governor went on to state that it was planned that a consultation would be arranged with an infectious diseases specialist who would be able to order the necessary examinations and prescribe treatment for the applicant.

17. On 3 March 2015 a blood test, apparently an HCV antibody test, came up positive. On the same day an ultrasound examination showed that the applicant’s liver had undergone diffuse changes.

18. On 8 June 2015 the head of the prison’s medical unit issued a certificate which stated that the applicant’s health had worsened in the previous two months and that he was suffering from fatigue, nausea, and weight loss. The certificate also stated that in order to ascertain the state of his health the applicant needed to be examined by an infectious diseases specialist of the Kirovograd Central City Hospital (“the City Hospital”).

19. On 19 June 2015 the acting President of the Section, upon the applicant’s request under Rule 39 of the Rules of Court, decided to indicate to the Government that they should present the applicant urgently for medical examination by a specialised doctor of the City Hospital; secure for the applicant immediately, by appropriate means, treatment to his state of health; and inform the Court by 17 July 2015 about the applicant’s state of health and the measures undertaken.

20. From 6 until 9 July 2015 the applicant underwent an in-patient examination at the City Hospital in the course of which a number of blood tests and an ultrasound examination were conducted and the applicant was examined by a number of specialists.

21. On 9 July 2015 the hospital issued an opinion according to which the applicant was suffering from сhronic HCV “in an inactive phase” and liver impairment. He was prescribed hepatoprotectors (Carsil and Ursohol). It was recommended that he undergo additional blood tests, namely the polymerase chain reaction (PCR) test for HCV, and, within ten days, another general blood test and a biochemical blood test. The applicant was to remain under the supervision of a gastroenterologist and an infectious diseases specialist.

22. On 14 July 2015 the Government informed the Court about the applicant’s examination at the City Hospital.

23. On 19 August 2015 the applicant complained to the Court that the recommendations of the City Hospital doctors were not being followed. On 26 August 2015 the Court invited the Government to comment on those allegations.

24. On 1 September 2015 the applicant started to be treated with hepatoprotector medicine. On 3 September 2015 he underwent general and biochemical blood tests which, according to the Government, revealed no abnormality. On 15 September 2015 he was consulted by a gastroenterologist and an infectious diseases specialist, who confirmed the diagnosis of inactive chronic hepatitis.

25. On 15 September 2015 the Government informed the Court of the measures taken from 1 to 15 September 2015.

II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIALS

26. The relevant part of 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 from 9 to 21 October 2013 reads as follows:

“161. The CPT is concerned by the lack of systematic screening and treatment for blood-borne viral hepatitis in the Ukrainian prison system. The delegation was informed that, currently, there was no National Programme for detecting and treating hepatitis in Ukraine (and no national standard for treatment), and that penitentiary establishments were not provided with any specific hepatitis medication. The Committee recommends that measures be taken to remedy this regrettable state of affairs.”

27. In 2013 the Ukrainian Parliamentary Commissioner for Human Rights published a special report dedicated to the monitoring of the observance of the right to medical care in the remand prisons within the purview of the State Correctional Service of Ukraine. The report contains the following observations concerning the rights of hepatitis patients (p. 35).

Diagnosing and treating hepatitis in patients was not a priority for remand prisons’ medical units. Testing was only voluntary and could only be conducted on the initiative of the prisoner in question. In practice it was difficult to get hepatitis diagnosed and treated. Where this happened, treatment was mainly conducted at the expense of relatives and friends, who furnished medications to prisoners. Only prisoners with HIV/AIDS could receive hepatitis treatment at public expense.

Medical units of remand prisons were in no position to ensure the treatment of acute hepatitis B and C and could only provide long-term antiviral and stabilising anti-inflammatory outpatient treatment.

28. On 29 April 2013 the Cabinet of Ministers approved a State programme for the prevention, diagnosis and treatment of viral hepatitis for the period until the end of 2016. The programme stipulates a number of goals to be achieved over that period, including extending access to hepatitis treatment to 30% of all patients.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

29. The applicant complained that he had not been provided with adequate medical care in detention. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

30. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

31. The applicant submitted that for a year after his arrest he had received no adequate medical assistance. Examinations he had undergone had not been completed and medical treatment had merely treated the symptoms. For him, this revealed a systematic defect in the prison system.

32. The Government submitted that the applicant had had access to the prison doctor on several occasions and had on those occasions requested certificates to be presented to the courts considering his criminal case. From 6 until 9 July 2015 the applicant had been examined at the City Hospital and had subsequently received certain recommendations in connection with his HCV– in particular, he had been prescribed certain hepatoprotectors. He had started receiving them on 1 September 2015. Afterwards the applicant had undergone blood tests and had been examined by specialists. The applicant had not complained to the prosecutor’s office about the alleged inadequacy of the medical assistance he had received. The Government maintained, therefore, that the applicant had been provided with the necessary medical examination and treatment corresponding to his state of health.

33. The All-Ukrainian Network submitted that hepatitis was an important cause of mortality. Its prevalence in Ukraine was above the regional average. Using modern treatment methods chronic HCV was curable through a 12-48 week course of treatment with a combination of drugs (pegylated interferon with ribavirin and/or inhibitors of viral proteases). However, the cost of this treatment, which was in the range of 16,000 United States dollars per course, put it beyond the reach of the overwhelming majority of Ukrainians. The State had adopted a number of programmes and taken a number of steps in an attempt to combat hepatitis and extend access to treatment, but a lack of funding meant that in practice access to treatment had been extremely limited: currently the State provided funding for the treatment of only 2,000 of the 44,000 patients in the general population who needed it. According to the All-Ukrainian Network, no HCV treatment had been provided in the prisons of the State Correctional Service during the years 2013-2015.

2. The Court’s assessment

(a) General principles

34. The Court has emphasised on many occasions that the health of detainees has to be adequately secured (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI). A lack of appropriate medical care may amount to treatment contrary to Article 3 of the Convention (see İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII, and Sarban v. Moldova, no. 3456/05, § 90, 4 October 2005).

35. In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention, that diagnosis and care are prompt and accurate, and that where necessitated by the nature of a medical condition supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis. The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through. Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, ECHR 2016, with further references).

36. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008, and Blokhin, cited above, § 138).

(b) Application of the above principles to the present case

37. The Court observes that on 3 December 2014 the prison authorities recognised that the applicant needed to be examined by an infectious diseases specialist in connection with his HCV. However, no action was apparently taken in respect of those recommendations until 6 July 2015, after the Court indicated the interim measure in the present case.

38. The Court is prepared to accept that prior to 3 March 2015 this lack of action was due to the applicant’s failure to cooperate by submitting to a blood test and thus obtaining confirmation of the HCV diagnosis, on which he insisted (see paragraph 14 above).

39. However, on 3 March 2015 a blood test yielded results which tended to support the diagnosis of HCV, which was eventually definitively confirmed. This – combined with the acknowledgement, on 3 December 2014, that the applicant needed a consultation with an infectious diseases specialist – clearly indicated that at least from 3 March 2015 the prison authorities had been unequivocally aware that the applicant’s hepatitis required medical attention.

40. Even so, there was no further action for more than four months, until 6 July 2015. The Court is not in a position to assess the precise impact of that inaction on the applicant’s health.

41. However, the Court cannot ignore the fact that on 8 June 2015 the prison’s medical unit acknowledged that the applicant’s health had worsened in the previous two months and that on 9 July 2015, after a comprehensive medical examination, the doctors had found that the applicant was suffering from liver impairment. It cannot be ruled out that this was a result of a lack of medical care in respect of the applicant’s hepatitis.

42. The Court is aware that the applicant’s condition was chronic and, according to certain medical opinions, inactive. However, the Government did not argue that in light of those characteristics it did not require particular attention and treatment. In fact, as indicated above, the authorities did find signs of deterioration in the applicant’s condition – in particular, that he suffered from a degree of liver impairment (see paragraphs 18 and 21 above) – and eventually recommended certain treatment. For the Court, this indicates that the applicant’s condition in fact required medical attention and treatment, which was denied to the applicant for a substantial period of time.

43. What is more, as discussed below in respect of Article 34 of the Convention, even after the applicant had undergone a medical examination in connection with his hepatitis and had been prescribed hepatoprotectors, he received that treatment only with a substantial delay (see paragraph 58 below).

44. In examining the applicant’s particular situation, the Court is also aware of the general background of the lack of sufficient medical care for hepatitis patients in the Ukrainian places of detention (see paragraphs 26, 27 and 33 above).

45. The Court concludes that the prison authorities failed to ensure regular and systematic medical supervision of the applicant’s condition and to put in place a comprehensive treatment strategy in respect of his hepatitis.

46. These considerations are sufficient for the Court to find that there has been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

47. The applicant complained that the Government’s failure to comply with the interim measure indicated 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.”

48. 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.”

A. The parties’ submissions

49. The Government submitted that there had been no breach of Article 34. In particular, after the interim measure had been indicated, the applicant had been placed in the City Hospital and had undergone an examination there between 6 and 9 July 2015. On 14 July 2015 the Government had reported on the steps taken. In response to the Court’s letter of 26 August 2015 the applicant had been presented for additional tests and examinations.

50. The applicant submitted that his examination of 6-9 July 2015 had been incomplete, and that blood tests recommended on 9 July 2015 had not been performed. He had started receiving treatment with medications prescribed (also on 9 July 2015) only in September 2015. He maintained that there had been a breach of Article 34 of the Convention.

B. The Court’s assessment

1. General principles

51. According to the Court’s established case-law, a respondent State’s failure to comply with an interim measure entails a violation of the right of individual application (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 125, ECHR 2005‑I, and Aoulmi v. France, no. 50278/99, § 108, ECHR 2006‑I (extracts).

52. A complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions 1998‑IV). Article 34 will be breached if the authorities of a Contracting State fail to take all the steps which could reasonably be taken in order to comply with an interim measure indicated by the Court (see Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009). It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (see ibid., cited above, § 92, and Grori v. Albania, no. 25336/04, § 184, 7 July 2009).

53. Whilst the formulation of an interim measure is one of the elements to be taken into account in the Court’s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi, cited above, § 91), and indeed to its very purpose (see Patranin v. Russia, no. 12983/14, § 52, 23 July 2015).

54. Interim measures are to be complied with as a matter of urgency (see Paladi, § 98, and Grori, § 190, both cited above). A delay in compliance has lead the Court to find violations of Article 34 even in cases where the interim measure was eventually complied with (see, for example, Grori, cited above, §§ 64, 70 and 190-95, and D.B. v. Turkey, no. 33526/08, § 67, 13 July 2010).

2. Application of the above principles to the present case

55. The Court notes that on 19 June 2015 under Rule 39 of the Rules of Court it indicated to the respondent Government that they should (i) present the applicant urgently for medical examination at the City Hospital; (ii) immediately provide the appropriate treatment to the applicant; and (iii) inform the Court by 17 July 2015 about the applicant’s state of health and the steps taken.

56. The Court notes that, in response to this measure, the Government secured the applicant’s examination at the City Hospital on 6 July 2015 and duly informed the Court about the results of that examination. Upon the applicant’s discharge from the hospital on 9 July 2015, a number of recommendations were made. In particular, the applicant was prescribed hepatoprotectors and it was recommended that he undergo a number of blood tests.

57. However, the prison authorities did not take any steps to comply with those recommendations until 1 September 2015 that is only after the Court forwarded to the Government the applicant’s complaint that those recommendations were not being followed through. It appears that even then compliance was not comprehensive – in particular the PCR blood test (see paragraph 21 above) was apparently never conducted.

58. The Court must conclude, therefore, that the prison authorities failed to comply with the interim measure from 9 July to 1 September 2015. The Government have not identified any objective impediments to compliance with the interim measure in that period (compare Grori, cited above, §§ 190-95).

59. Whether or not that delay caused the irreversible damage which the interim measure was designed to prevent, is, in itself, irrelevant to the Court’s assessment (see Paladi, cited above, § 89, and Salakhov and Islyamova v. Ukraine, no. 28005/08, § 223, 14 March 2013).

60. The purpose of the interim measure indicated by the Court, 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 prison authorities merely ensured the initial examination of the applicant and then, having provided a report to the Government Agent’s office (and, through it, to the Court), apparently neglected to follow up on any of the medical recommendations made following that examination without providing any justification for this omission.

61. Such conduct on the part of the prison authorities undermined the effective operation of the interim measure indicated by the Court since it required the Court to continue to intervene to make sure that the respondent State continued to comply with the measure even after they had reported to the Court that the measure has been complied with.

62. The Court concludes, therefore, that the respondent State has failed to fulfil its obligation under Article 34 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. 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.”

A. Damage

64. The applicant claimed 16,000 euros (EUR) in respect of non‑pecuniary damage.

65. The Government considered that claim excessive.

66. Ruling on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage.

B. Costs and expenses

67. The applicant also claimed 3,673 Ukrainian hryvnias for the costs and expenses incurred before the Court.

68. The Government left this matter to the Court’s discretion.

69. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 121 under this head.

C. Default interest

70. 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

71. Given that the factual circumstances which led to the application of Rule 39 of the Rules of Court in the present case have changed, 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 respondent State has failed to fulfil its obligation under Article 34 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 121 (one hundred and twenty-one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

6. Decides to discontinue the application of Rule 39 of the Rules of Court.

Done in English, and notified in writing on 6 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

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