CASE OF SOKOLOVSKYY v. UKRAINE

FIFTH SECTION

CASE OF SOKOLOVSKYY v. UKRAINE

(Application no. 6433/18)

JUDGMENT

STRASBOURG

4 July 2019

This judgment is final but it may be subject to editorial revision.

In the case of Sokolovskyy v. Ukraine,

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

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 11 June 2019,

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

PROCEDURE

1.  The case originated in an application (no. 6433/18) 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 Vasyl Mykolayovych Sokolovskyy (“the applicant”), on 30 January 2018.

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

3.  The applicant complained that he had not received adequate medical treatment in detention and that he had not had an effective domestic remedy for the above complaint. He further complained that the authorities had failed to give relevant and sufficient reasons to justify his pre-trial detention, that there had been no effective procedure to challenge the lawfulness of his detention, and that he had had no enforceable right to compensation for his allegedly arbitrary detention.

4.  On 2 February 2018 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court, so that he could be transferred to a specialist medical facility for further neurological treatment. The Court rejected that request on 20 February 2018. The application was granted priority under Rule 41 of the Rules of Court.

5.  On 19 April 2018 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1976 and is detained in Kyiv.

A.  Criminal proceedings against the applicant

7.  On 1 December 2016 the applicant was arrested by the police on suspicion of human trafficking.

8.  On 2 December 2016 the Babushkinskyy District Court of Dnipro (“the District Court”) ordered his detention. The relevant decision stated that he might otherwise abscond or hinder the investigation. The court further stated that the applicant, while at liberty, might influence witnesses and communicate with others online. No further details were provided by the court in that regard. The court also set bail of 2,000,000 Ukrainian hryvnias (UAH) as an alternative measure. On 5 December 2016 the applicant was released after payment of the bail.

9.  According to the applicant, upon his release he was immediately arrested by the police on similar charges (new episodes of human trafficking) within other criminal proceedings.

10.  On 6 December 2016 the District Court ordered his detention. The relevant decision stated that he might otherwise abscond or hinder the investigation. No further details were provided by the court in that regard. The court also set bail of UAH 3,000,000 as an alternative measure. On 23 December 2016 that decision was upheld on appeal.

11.  On 26 January and 22 March 2017 the District Court extended the applicant’s detention until 26 March and 20 May 2017 respectively, retaining the ability for him to be released on bail. The District Court gave similar reasons for his continued detention as those in its decision of 6 December 2016.

12.  On 4 May 2017 the criminal case against the applicant was forwarded to the District Court for trial.

13.  On 13 May 2017, in the course of the preparatory hearing, the District Court extended the applicant’s detention until 10 July 2017. The decision stated that he had no permanent place of residence, had been accused of a serious crime, might otherwise abscond or hinder the investigation by influencing witnesses or destroying or concealing evidence, or continue with his criminal activity. No further details were provided by the court in that regard.

14.  On 1 June 2017 the Higher Specialised Court for Civil and Criminal Matters changed the court competent to hear the applicant’s case to the Solomyanskyy District Court of Kyiv (“the trial court”).

15.  On 26 June 2017 the trial court resumed the preparatory hearing and extended the applicant’s detention until 24 August 2017. The court gave similar reasons for the applicant’s continued detention as those given by the District Court in its decision of 13 May 2017, without providing any further details.

16.  On 7 August, 3 October and 30 November 2017 and 24 January 2018 the trial court extended the applicant’s detention for the respective periods, the most recent period being set to expire on 24 March 2018. The trial court reiterated the reasons for the applicant’s continued detention given previously, without providing any further details. In the decision of 24 January 2018 it dismissed a request for release which the applicant had lodged that day. No reasons were provided for that decision.

17.  According to the available information, the applicant is being held in detention, while the case against him is still pending before the trial court.

B.  Medical care provided to the applicant

1.  The applicant’s state of health prior to his arrest

18.  According to the applicant, he has a long-term heart condition following a heart attack in 2011. In 2011 and 2016 he underwent stenting treatment.

19.  On 30 November 2016 he was taken to hospital by ambulance with severe chest pain. He was diagnosed with ischemic heart disease and unstable angina.

20.  On 1 December 2016 he was discharged from hospital as his state of health had improved.

2.  Medical care provided to the applicant while in detention

21.  Between 1 December 2016 and 24 June 2017 the applicant was detained in the Dnipro Pre-Trial Detention Centre (“the SIZO”). He did not submit any information about the medical treatment he received during that period.

22.  On 24 June 2017 the applicant was transferred to the Kyiv SIZO.

23.  According to the medical examination carried out that day, the applicant was diagnosed with ischemic heart disease, artherosclerotic and postinfarction cardiosclerosis, atherosclerosis of aorta (transmural myocardial infarction 2011), class III exertional angina (pectoris) and heart insufficiency. He was given recommendations regarding his further treatment. The parties did not provide the Court with details of the recommended treatment.

24.  On 26 June 2017 the penal authorities informed the applicant’s defence lawyer that the SIZO had no cardiologist on its staff.

25.  On 4 September 2017 the applicant consulted a SIZO surgeon.

26.  From 27 to 30 September 2017 the applicant underwent treatment at the Stragesko Cardiology Institute. According to the relevant medical records, the applicant was diagnosed with ischemic heart disease, class III exertional angina (pectoris) and stage 3 hypertension. He was prescribed medication and informed that he required monitoring by a cardiologist. According to the Government, the recommended treatment could be provided to the applicant within the SIZO.

27.  On 19 January 2018 the applicant consulted a cardiologist at the SIZO who recommended him inpatient treatment at a specialist cardiology facility. His overall condition was described as “moderately serious”. According to the Government, the medical treatment prescribed to him could be provided within the SIZO.

28.  On 22 January 2018 a forensic expert from the Kyiv City Clinical Bureau of Forensic Examinations issued a report, at the request of the applicant’s defence lawyer, stating that the applicant had, inter alia, the following chronic illnesses: stage 3 hypertension, heart failure, class III exertional angina (pectoris), ischemic heart disease, post-infarction cardiosclerosis, and a post-stent condition. The expert recommended, inter alia, that he be given ongoing medical treatment under the care of a doctor and a coronary intervention. He concluded that the applicant’s health would be put at a serious and potentially fatal risk if he were not provided with adequate inpatient treatment outside the SIZO.

29.  On 7 February 2018 the SIZO authorities replied to the request by the applicant’s defence lawyer stating, inter alia, that the SIZO had no cardiologist on its staff.

30.  On 11, 18, 19, 20 and 25 February 2018 the applicant complained to the SIZO authorities about the deterioration of his state of health and requested medical treatment outside the SIZO. In particular, he stated that he had been suffering pain in his chest and dizziness, and had lost consciousness a number of times. It appears that he did not receive any response to his requests.

31.  According to a certificate issued by the SIZO on 12 February 2018, the applicant remained under the care of the SIZO medical staff and did not require inpatient medical treatment. It was indicated in the certificate that the SIZO had no cardiologist on its staff.

32.  On 22 February 2018 the SIZO informed the prosecution authorities and the trial court about the applicant’s state of health. The SIZO stated that the recommendations concerning his monitoring by a cardiologist and further treatment at the specialist cardiology facility could not be implemented by the SIZO owing to the absence of a cardiologist on its staff.

33.  On 27 February 2018 the SIZO governor informed the applicant’s defence lawyer that the applicant was receiving symptomatic treatment. It was mentioned that the provision of specialist and high quality medical treatment was not possible at the SIZO, and that the applicant’s further detention was to be considered by the trial court.

34.  On 28 February 2018 the State-run facility “The Heart Institute” issued a consultative opinion, recommending that the applicant undergo inpatient cardiology treatment.

35.  On 1 March 2018 the SIZO again informed the applicant’s defence lawyer, with reference to previous medical opinions, that the applicant required ongoing monitoring by a cardiologist but that this was not possible at the SIZO because there was no cardiologist on its staff.

36.  On 6 March 2018 a forensic expert from the Kyiv City Clinical Bureau of Forensic Examinations issued a report, at the request of the applicant’s defence lawyer, reiterating the conclusions given in the previous report of 22 January 2018 (see paragraph 28 above).

37.  On 11 June 2018 the SIZO informed the applicant’s defence lawyer about her client’s state of health, reiterating the same information given on 1 March 2018 (see paragraph 35 above).

38.  The parties did not inform the Court of the treatment provided to the applicant after June 2018.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

39.  The applicant complained that he had not been provided with adequate medical treatment and care while in detention in the SIZO and that he had not had an effective domestic remedy for the above 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

40.  The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaint of inadequate medical treatment. They considered that he should have lodged his health complaints with the prosecutor’s office and the domestic courts.

41.  The applicant submitted that he had regularly complained about his health issues to the SIZO and the trial court, but to no avail.

42.  The Court considers that that argument is closely linked to the substance of the applicant’s complaints concerning the lack of domestic remedies for his complaint of inadequate medical treatment. It must therefore be joined to the merits.

43.  The Court further notes that the above complaints are neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention

44.   The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against the State before the Court to first use the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to provide appropriate relief. Moreover, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).

45.   The Court recalls 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 conditions of detention and a lack of medical treatment (see, among other authorities, Melnik v. Ukraine, no. 72286/01, §§ 113-16, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008; Iglin v. Ukraine, no. 39908/05, § 77, 12 January 2012; and Barilo v. Ukraine, no. 9607/06, §§ 104-05, 16 May 2013). With reference to the above-mentioned case-law and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had in practice an opportunity to obtain effective remedies for his complaint, that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.

46.  The Court therefore concludes that there has been a violation of Article 13 of the Convention in conjunction with Article 3 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, and, consequently, dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies.

2.  Alleged violation of Article 3 of the Convention

47.  The applicant complained that he had not received adequate medical treatment for his heart condition. He stated in particular that, according to the medical recommendations, he had required specialist medical care, but had only been given symptomatic treatment at the SIZO medical unit owing to the absence of a cardiologist on its staff.

48.  The Government disagreed, stating that the medical care provided to the applicant had been in full compliance with the requirements of Article 3 of the Convention.

49.  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 (cited above, §§ 77‑83); Petukhov v. Ukraine (no. 43374/02, §§ 91‑98, 21 October 2010); and Sergey Antonov v. Ukraine (no. 40512/13, §§ 70‑75, 22 October 2015).

50.  Turning to the circumstances of the present case, the Court notes at the outset that the medical condition the applicant suffered from (see paragraphs 23, 26 and 28 above) was serious enough to affect his everyday functioning and to even pose a risk to his life. He could therefore have experienced considerable anxiety regarding whether the medical care provided to him was adequate.

51.  The Court further notes that the applicant was recommended inpatient treatment at a specialist cardiology facility a number of times (see paragraphs 27, 28, 34 and 36 above). It appears that that recommendation was never implemented.

52.  In this connection, the Court notes that the authorities acknowledged that the SIZO medical unit was not sufficiently equipped and staffed to address the applicant’s heart condition (see paragraphs 24, 29, 31-33, 35 and 37 above). This indicates that the applicant received merely symptomatic treatment in response to his health problems. It further notes that it has previously established in cases against Ukraine a lack of qualified medical staff and/or equipment capable of adequately addressing applicants’ health needs in detention (see, for example, Yakovenko v. Ukraine, no. 15825/06, §§ 96‑97, 25 October 2007; Temchenko v. Ukraine, no. 30579/10, § 89, 16 July 2015; and Osipenkov v. Ukraine [Committee], no. 31283/17, § 27, 29 January 2019).

53.  While acknowledging that the applicant received some treatment in detention, the Court cannot subscribe to the Government’s argument that the level of medical care provided to him was sufficient. The documentary information provided by the Government in support of their observations refers to the applicant’s illnesses and doctors’ recommendations for treatment. It however does not refute the applicant’s grievances about the quality of treatment he received in detention (see paragraph 47 above).

54.  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.

II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

55.  The applicant complained that the domestic courts’ decisions ordering his detention had been arbitrary and had lacked reasoning. He further complained that the trial court had failed to properly examine his request for release lodged on 24 January 2018. Lastly, he complained that he had had no enforceable right to compensation for his allegedly arbitrary detention. He relied on Article 5 §§ 1 (c), 3, 4 and 5 of the Convention.

56.  Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), and having regard to the substance of the applicant’s complaints under Article 5 §§ 1 and 3 concerning the arbitrariness and reasoning of the domestic courts’ decisions ordering his detention, the Court decides to examine them under Article 5 § 3 of the Convention.

The relevant provisions of Article 5 §§ 3, 4 and 5 of the Convention read as follows:

“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.  Admissibility

57.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  Article 5 § 3 of the Convention

58.  The applicant submitted that his detention had been unlawful and unjustified, as the courts had repeatedly referred to the same set of grounds for his detention without providing any details in that respect. He further stated that, despite being generally in compliance with domestic law, his continued detention had not been necessary in the circumstances. Lastly, he stressed that the courts had failed to consider alternative preventive measures after the case had been transferred to the trial court.

59.  The Government submitted that the domestic courts had carefully examined the circumstances of the case when deciding to detain the applicant and had provided well-reasoned decisions in compliance with both the domestic legislation and the Convention.

60.  The applicable general principles are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016).

61.  The Court observes that there is no dispute between the parties that the applicant has been in uninterrupted detention since his arrest on 1 December 2016 (see paragraph 7 above).

62.  The Court further observes that, contrary to the Government’s assertion, the District Court’s decisions of 2 and 6 December 2016 did not contain clear and precise reasons for the applicant’s detention but simply referred to the investigator’s submissions, without any examination of the plausibility of the grounds invoked by the latter (see paragraphs 8 and 10 above). As regards the court’s reference to the risk of the applicant’s potential influence over witnesses and communication with others online if at liberty, the Court wonders how the existence of that risk correlates with the applicant’s ability to be released on bail (idem).

63.  Next, the Court observes that the courts’ reasoning did not evolve with the passage of time. In their further decisions to extend the applicant’s detention, namely those taken on 26 January, 22 March, 13 May, 26 June, 7 August, 3 October and 30 November 2017 and 24 January 2018, the courts reiterated the same set of grounds, namely the seriousness of the charges against the applicant and the risk that he might abscond and hinder the investigation by influencing witnesses or destroying or concealing evidence, or continue with his criminal activity. The Court notes that the decisions ordering the applicant’s detention were couched in general terms and contained repetitive phrases. They do not suggest that the courts made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the relevant stage of the proceedings.

64.  Furthermore, with the exception of the decisions of 26 January and 22 March 2017 (see paragraph 11 above), the domestic authorities did not consider any other preventive measures as an alternative to detention (see Osypenko v. Ukraine, no. 4634/04, §§ 77 and 79, 9 November 2010).

65.  The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that the domestic courts referred to the same set of grounds, if there were any, throughout the period of the applicant’s detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011, and Ignatov v. Ukraine, no. 40583/15, § 41, 15 December 2016).

66.  Having regard to the above, the Court considers that by failing to address the specific facts of the applicant’s situation and by relying essentially and routinely on the seriousness of the charges against him, the authorities extended the applicant’s detention pending trial on grounds which cannot be regarded as “sufficient” and “relevant”.

67.  There has accordingly been a violation of Article 5 § 3 of the Convention.

2.  Article 5 § 4 of the Convention

68.  The applicant complained that the trial court had failed to properly examine his request for release lodged on 24 January 2018.

69.  The Government argued that the applicant had had at his disposal an effective procedure to challenge the lawfulness of his detention.

70.  The Court observes that the applicant’s grievances were focused on the trial court’s failure to give relevant reasons in its decision of 24 January 2018 when examining in the same proceedings the prosecutor’s request to extend his detention and his request for release. In this connection, the Court notes that it has already examined this issue under Article 5 § 3 of the Convention (see paragraphs 62-67 above). It sees no need to deal with the same point under Article 5 § 4 of the Convention as well (see, mutatis mutandis, Ignatenco v. Moldova, no. 36988/07, § 91, 8 February 2011, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 525, 25 July 2013). Accordingly, no separate examination of the applicant’s complaint under Article 5 § 4 of the Convention is required.

3.  Article 5 § 5 of the Convention

71.  The Court observes that the applicant’s complaint in this regard is similar to the complaints examined by the Court in a number of other cases against Ukraine (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that he did not have an enforceable right to compensation for his unlawful detention, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

72.  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

73.  The applicant claimed 2,000,000 Ukrainian hryvnias (UAH) (65,150 euros (EUR)), representing the amount which he paid as bail, and UAH 11,972.87 (EUR 390) for the expenses incurred for his medication. He further claimed EUR 10,000 in respect of non-pecuniary damage.

74.  The Government considered the claims unsubstantiated and excessive.

75.  The Court finds that there is no causal link between the payment of bail and the violation alleged; it therefore rejects the above claim. As to the applicant’s claim in respect of medical expenses, the Court finds it unsubstantiated. On the other hand, it awards him EUR 10,000, the full amount sought in respect of non‑pecuniary damage, plus any tax that may be chargeable.

B.  Costs and expenses

76.  The applicant also claimed EUR 8,000 for the legal costs incurred before the Court. He asked that they be paid directly into his representative’s bank account. He also claimed EUR 50 for administrative expenses.

77.  The Government considered the amount claimed unsubstantiated.

78.  Regard being had to the documents in its possession and to its case‑law, the Court awards EUR 1,000 under this head. This amount is to be paid directly into the bank account of the applicant’s representative, Ms O.V. Shapoval, as requested by the applicant (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

C.  Default interest

79.  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.  Joins to the merits the Government’s objection concerning the non-exhaustion of domestic remedies in respect of the applicant’s complaint of the lack of adequate medical care in detention and rejects this objection after an examination of the merits;

2.  Declares the applicant’s complaints under Articles 3 and 13 of the Convention concerning the lack of adequate medical care in detention and the lack of an effective domestic remedy for the above complaint, and his complaints under Article 5 §§ 3, 4, and 5 of the Convention admissible;

3.  Holds that there has been a violation of Article 3 of the Convention;

4.  Holds that there has been a violation of Article 13 of the Convention;

5.  Holds that there has been a violation of Article 5 § 3 of the Convention;

6.  Holds that there has been a violation of Article 5 § 5 of the Convention;

7.  Holds that there is no need to examine separately the complaint under Article 5 § 4 of the Convention;

8.  Holds

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of his representative, Ms O.V. Shapoval;

(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;

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

Done in English, and notified in writing on 4 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Yonko Grozev
Deputy RegistrarPresident

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