CASE OF IVANOV AND KASHUBA v. UKRAINE

FOURTH SECTION

CASE OF IVANOV AND KASHUBA v. UKRAINE

(Application nos. 12258/09 and 54754/10)

JUDGMENT

STRASBOURG

29 January 2019

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

In the case of Ivanov and Kashuba 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 two applications (nos. 12258/09 and 54754/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Aleksandr Viktorovich Ivanov (“the first applicant”) and Mr Vladimir Mikhaylovich Kashuba (“the second applicant”), on 20 February 2009 and 10 September 2010 respectively.

2. The first applicant, who had been granted legal aid, was represented by Mr Igor Karaman, who at that time was a lawyer practising in Kyiv. In 2017 Mr Karaman informed the Court that he could no longer represent the applicant. The second applicant, who had been granted legal aid, was represented by Mr Taras Kalmykov, 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. The applicants alleged, under Article 3 of the Convention, that they had not been provided with adequate medical assistance in detention. The second applicant further alleged, under Article 3 of the Convention, that the conditions of his detention in Ladyzhynka Colony no. 39 had been inadequate, and, under Article 13 of the Convention, that he had not had an effective domestic remedy for his complaints under Article 3.

4. On 2 January 2012 the Government were given notification of application no. 12258/09. On 2 July 2015 and 18 February 2017 the complaints within application no. 54754/10 were notified to the Government and the remainder was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

5. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.

6. On 8 January 2018 the second applicant died. On 25 January 2018 his son, Mr Pavlo Volodymyrovych Kashuba, expressed the wish to pursue the proceedings before the Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASES

A. Application no. 12258/09 (Ivanov v. Ukraine)

7. The first applicant, Mr Aleksandr Viktorovich Ivanov, is a Ukrainian national who was born in 1956. He is currently serving a life sentence in Zhytomyr prison no. 8 (“Zhytomyr prison”).

1. Background to the case

8. On 17 March 1996 the applicant was arrested on suspicion of murder and other crimes. On 23 March 1996 he was placed in the Odessa pre-trial detention centre (“SIZO”).

9. On 19 February 1997 the Odessa Regional Court convicted the applicant of aggravated murder and other crimes, and sentenced him to the death penalty. On 10 July 1997 the Supreme Court of Ukraine upheld that judgment and it became final.

10. Following a declaration that the death penalty was unconstitutional by a decision of the Constitutional Court of Ukraine in December 1999 and amendments to the Criminal Code in February 2000, on 4 October 2000 the Odessa Regional Court commuted his death sentence to life imprisonment.

11. On 29 May 1999 the applicant was transferred to Zhytomyr prison.

2. Medical treatment

12. On 27 March 1996 while detained in the Odessa SIZO, the applicant was found to have HIV antibodies. According to his medical file, that result was confirmed following further tests on 29 March and 1 April 1996. The applicant was recommended to undergo a clinical immunology examination.

13. According to the applicant, no further examination or medical treatment was carried out following the above-mentioned test.

14. The applicant’s medical file contains a note by a dermato-venereologist on 19 April 1996 with indication that he was HIV-infected. Another note was made on 31 August 1998 indicating that he received medical advice “on the issues of HIV infection”. Later on, in October 2008 a note was made in his medical file indicating that the applicant had been suffering from HIV for ten years and had had hepatitis B.

15. According to the Government, on 20 February, 27 March, 17 April, 3 June, 11 June, 9 September and 5 November 1997, and on 23 January, 5 March, 17 March, 4 June, 7 July, 19 September and 10 December 1998, the applicant underwent regular medical examinations at the SIZO. In the course of those examinations he did not raise any health complaints. An HIV test of 11 January 1999 did not indicate HIV infection in the applicant’s blood. The case file contains a medical certificate of 14 January 1999 indicating that following the HIV test, the applicant was found to have HIV antibodies. He was recommended to undergo an in-depth clinical immunology examination. There is no information in the case file as to whether that recommendation was followed up.

16. On 31 May 1999, following the applicant’s transfer to Zhytomyr prison, he underwent a medical examination by a panel of doctors at the prison medical unit. The examination revealed that he was apparently in good health.

17. On 25 December 2007 following a blood test, the applicant was revealed viral hepatitis C antibodies.

18. On 6 May 2008 the applicant underwent a CD-4 (white blood-cell) test, the result of which was 175 cells per mm3.

19. On 25 June 2008, following a regular medical examination by a specialist in infectious diseases, the applicant was diagnosed with stage 2 HIV infection (the CD-4 count was 176 cells). He was prescribed a course of antiretroviral therapy(“the ART”).

20. On 13 July 2008 the applicant underwent another CD-4 test, the result of which was 296 cells per mm3.

21. According to the applicant’s medical file provided by the Government, in November 2008 he was examined by a doctor from the Zhytomyr regional centre for Aids prevention and control (“the anti-Aids centre”). The applicant was diagnosed with HIV infection (second clinical stage) and hepatitis C in the remission stage.

22. According to the Government, on 1 March 2009 the prison received the relevant medication from the penal authorities, and the applicant started the ART course.

23. On 7 October 2009 the applicant was examined by a medical commission and diagnosed with HIV infection (second clinical stage), chronic hepatitis (the type of disease was not indicated), chronic gastritis, cholecystitis, ischemic heart disease and second-degree hypertension.

24. On 27 August 2010 the applicant underwent a regular examination by a specialist in infectious diseases, who diagnosed him with HIV infection (second clinical stage) and chronic hepatitis C with minimal activity.

25. On 19 December 2011 the applicant underwent a regular quarterly examination by doctors from the anti-Aids centre. He was diagnosed with HIV infection (second clinical stage with a CD-4 count of 437 cells) and chronic hepatitis C with minimal activity. It was recommended that he continue receiving the ART by hepatoprotectors twice a year for twenty days.

26. The parties did not inform the Court about the treatment the applicant was provided with after December 2011.

B. Application no. 54754/10 (Kashuba v. Ukraine)

27. The second applicant, Mr Vladimir Mikhaylovich Kashuba, was a Ukrainian national who was born in 1958. At the time of his death (8 January 2018 – see paragraph 6 above), he was serving a life sentence in Ladyzhynka Colony no. 39 (“the Ladyzhynka Colony”).

1. Background to the case

28. On 7 September 2000 the second applicant was arrested on suspicion of aggravated robbery and murder. On 14 September 2000 he was placed in the Lutsk SIZO.

29. On 4 January 2001 the Volyn Regional Court found the applicant guilty of aggravated robbery and murder and convicted him to life imprisonment. By the same judgment he was found to be exceptionally dangerous to society. An appeal on points of law lodged by the applicant was dismissed by the Supreme Court on 24 May 2002.

30. On 8 September 2001 the applicant was transferred to the Vinnytsya SIZO.

31. On 22 February 2007 he was transferred to the Ladyzhynka Colony.

2. Medical treatment

32. Upon arrival at the Lutsk SIZO in September 2000, the second applicant was examined by the SIZO medical personnel and placed under monitoring as a person who had suffered tuberculosis (TB).

33. Upon arrival at the Vinnytsya SIZO in September 2001, the applicant was examined by the SIZO medical personnel and placed under monitoring as a person who had suffered TB.

34. According to the applicant, in March 2003 he underwent a medical check and was diagnosed with TB.

35. The applicant submitted that, in May 2003 he had received some medication for his TB. From June to August 2003 he did not receive any treatment. In September 2003 his treatment was resumed and a special diet was prescribed for him. The parties did not specify the nature of that treatment.

36. On 18 November 2003 the applicant was examined by a tuberculosis specialist and was diagnosed with clinically cured TB (клінічно вилікуваний туберкульоз). On 30 March 2004 he was examined by another tuberculosis specialist and was diagnosed with spontaneously cured TB (спонтанно вилікуваний туберкульоз), and tuberculoma of the upper part of the left lung. The parties did not specify whether the applicant had been prescribed and had received any treatment during the above-mentioned period of time.

37. According to the applicant, between March 2004 and November 2006 he was examined eight times by the tuberculotherapist. During that period he was diagnosed with tuberculoma of the upper part of the left lung and later with post-TB residual changes in the upper part of the left lung (category 5.1). He was prescribed some treatment, the nature of which was not specified by the parties.

38. Upon arrival at the Ladyzhynka Colony on 22 February 2007, the applicant was examined by the colony’s medical personnel and placed under monitoring as a person with residual changes in the upper part of the left lung in the form of dense focal lung lesions (щільні вогнищеві тіні), category 5.1.

39. According to the applicant, since 27 February 2007 he has been provided with medical treatment and a special diet for his TB. The parties did not specify the nature and duration of that treatment.

40. On 3 September 2007, 29 February and 1 September 2008, 1 March and 1 September 2009, and 26 February 2010 the applicant was prescribed a season’s course of anti-relapse treatment and a special diet. The parties did not specify the nature of that treatment.

41. According to the Government, between April 2008 and April 2014 the applicant was examined by a prison doctor more than fifty times regarding his TB. He was diagnosed with TB residual changes in the upper part of the left lung in the form of dense focal lung lesions (category 5.1), and chronic bronchitis in the unstable remission stage. Medical treatment was prescribed. The parties did not specify the nature of that treatment.

3. Conditions of the second applicant’s detention

42. The second applicant submitted that he was forced to remain in a bent position with his arms handcuffed behind his back during regular searches of his cell, for outside walks, and on the way to take showers. He provided the following description of the above-mentioned events.

43. Before the cell doors were opened, the applicant was asked to bend down, put his arms behind his back and insert them through a small window in the cell door to have them handcuffed. The guards then opened the cell door, took the prisoners out of the cell and performed a search of the inmates and the cell. During the search, the applicant and the rest of the inmates were kept in a bent position. Upon completion of the search, the applicant was taken back to the cell, the handcuffs were removed and he was allowed to stand up straight once the cell door had been closed.

44. In order to take outside walks, the applicant was taken out of the cell in a bent position with his arms handcuffed behind his back. He and the other inmates were forced to assume that position on the way to the exercise yard and back. The inmates were escorted by a group of prison guards and dogs. Sometimes that procedure was followed with beatings with rubber truncheons.

45. According to the prison schedule, the applicant was allowed a shower once a week. On the way to the shower facilities and back, he was forced to assume a bent position with his arms handcuffed behind his back. The water in the shower was sometimes cold and the shower itself lasted five minutes. The shower room was dark; it was equipped only with a small window, and there was no electric light inside. There was no heating in the shower room and in winter the temperature there was approximately 7-8oC.

46. The applicant was provided with 100 grams of soap per month for his hygiene needs. He received the rest of the hygiene products he needed from his mother.

47. The applicant had to wash and dry his clothes in the cell which, as a result, was damp. It was not possible to open the window and ventilate the cell in winter as the heating was too low and the cell got cold at once.

THE LAW

I. JOINDER OF THE APPLICATIONS

48. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).

II. PRELIMINARY QUESTION (APPLICATION NO. 54754/10 – KASHUBA V. UKRAINE)

49. The Court notes at the outset that the second applicant died while the application was pending before it. The Government argued that the applicant’s son had no locus standi to pursue the application in view of the fact that the rights enshrined by Article 3 of the Convention were eminently personal and non-transferable.

50. The Court has accepted that, where an applicant has died after the application was lodged, his next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014 and the references indicated therein).

51. In view of the above, the Court accepts that the second applicant’s son, Mr Pavlo Volodymyrovych Kashuba (see paragraph 6 above), has a legitimate interest in pursuing the application in the late applicant’s stead. It will therefore continue dealing with the case at his request. For convenience, it will, however, continue to refer to Mr Vladimir Mikhaylovich Kashuba as the applicant or the second applicant in the present judgment.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

52. The first applicant complained that he had not been provided with any HIV treatment until March 2009, and had been provided with no treatment at all for hepatitis C and other diseases. The second applicant complained that he had contracted TB while in pre-trial detention and that no appropriate medical assistance had been provided to him. He further complained that the conditions of his detention in the Ladyzhynka Colony had been inadequate.

The applicants 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. Alleged violation of Article 3 of the Convention in respect of the medical assistance provided to the applicants in detention

1. Admissibility

(a) Application no. 12258/09 (Ivanov v. Ukraine)

i. Compatibility ratione temporis

53. First of all, the Court observes that the present complaint concerns the first applicant’s medical treatment in the Odessa SIZO since 27 March 1996. However, the Convention entered into force in respect of Ukraine on 11 September 1997. Accordingly, the events that took place prior to that date fall outside the Court’s jurisdiction ratione temporis, with the result that the corresponding part of the application should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. Nevertheless, in order to assess the context and the situation complained of as a whole, the Court will take into account relevant facts that occurred prior to the date when the Convention entered into force in respect of Ukraine (see, mutatis mutandis, Milanović v. Serbia, no. 44614/07, § 78, 14 December 2010).

ii. Exhaustion of domestic remedies

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

55. The first applicant submitted that he had regularly complained about his health issues to the doctors and the penal authorities, but to no avail.

56. The Court notes that it has already examined and dismissed similar objections, finding the remedy referred to by the Government ineffective (see, for instance, Melnik v. Ukraine, no. 72286/01, §§ 69, 28 March 2006; Buglov v. Ukraine, no. 28825/02, § 74, 10 July 2014; and Sokil v. Ukraine, no. 9414/13, § 38, 22 October 2015). The Court sees no reason to depart from that finding in the present case and therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies.

iii. Other grounds for inadmissibility

57. The Court notes that the part of this complaint relating to the period after 11 September 1997 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Application no. 54754/10 (Kashuba v. Ukraine)

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

2. Merits

(a) The parties’ submissions

i. Application no. 12258/09 (Ivanov v. Ukraine)

59. The applicant submitted that he had started receiving ART treatment with significant delay, which had caused him psychological stress as his life had been under threat between 1996 and 2009. The Government failed to provide any valid explanation for the delay. He also submitted that he had not had regular medical examinations while in the Odessa SIZO. He further submitted that he had not received any treatment for hepatitis C and that the Government had failed to present clear documentary evidence that he did not require such treatment.

60. The Government contended that the applicant had been under constant monitoring by doctors and had been provided with timely and effective diagnoses and medical treatment for his HIV infection and hepatitis C.

ii. Application no. 54754/10 (Kashuba v. Ukraine)

61. The applicant complained that he had not received adequate medical treatment for tuberculosis while serving his sentence. He further submitted that from June to August 2003 he had not received any treatment at all.

62. The Government contended that during the period of the applicant’s detention since September 2000, he had been diagnosed with post-TB residual changes, which demonstrated that he had not suffered from a serious form of the disease and that he had recovered. They further claimed that he had regularly undergone examinations and anti-relapse therapy, and that he had been under permanent monitoring by the medical personnel of the prison medical unit.

(b) The Court’s assessment

63. The Court has emphasised on a number of occasions that a lack of appropriate medical care in detention may amount to treatment contrary to Article 3 of the Convention (see, among many other authorities, 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, and Petukhov v. Ukraine, no. 43374/02, §§ 91-98, 21 October 2010).

64. Other relevant principles determined by the Court in its case-law as regards Article 3 of the Convention and in respect of medical treatment in detention are summarised in the case of Sergey Antonov v. Ukraine (no. 40512/13, §§ 70-75, 22 October 2015).

65. The Court has addressed the issue of inadequate medical assistance for people with HIV and tuberculosis in Ukrainian detention facilities in a number of cases (see for instance Kats and Others v. Ukraine, no. 29971/04, §§ 106-09, 18 December 2008; Pokhlebin v. Ukraine, no. 35581/06, §§ 63-67, 20 May 2010; Salakhov and Islyamova v. Ukraine, no. 28005/08, §§ 134-38 and 145, 14 March 2013; Sergey Antonov, cited above, §§ 76-90; Melnik, cited above, §§ 104-06; Yakovenko v. Ukraine, no. 15825/06, §§ 97-102, 25 October 2007; Kondratyev v. Ukraine, no. 5203/09, § 72, 15 December 2011; and Kushnir v. Ukraine, no. 42184/09, §§ 142-49, 11 December 2014).

66. The main reasons for the Court to conclude in those cases that the applicants had not been provided with adequate medical care were the lack of promptness or unjustified delays in arranging medical examination, diagnosis or commencement of medical treatment (see Melnik, §§ 104-05; Yakovenko, §§ 92-93 and 98-100; Kushnir, §§ 144-145; and Kondratyev, § 87, all cited above), the lack of qualified staff or equipment (see Yakovenko, cited above, §§ 96-97, and Temchenko v. Ukraine, no. 30579/10, § 89, 16 July 2015) and the authorities’ acknowledgement that the medical assistance had not been timely and adequate (see Salakhov and Islyamova, cited above, § 145).

67. Turning to the circumstances of the present cases, the Court notes at the outset that the life‑threatening nature of the applicants’ conditions was beyond doubt.

68. As regards application no. 12258/09 (Ivanov v. Ukraine), the Court observes that the applicant had been shown to have HIV antibodies in 1996, following a series of blood tests that had been undertaken while he was detained in the Odessa SIZO (see paragraph 12 above). This fact is also corroborated by the notes made in his medical file (see paragraph 14 above). It appears in this connection that the authorities have not reacted to the applicant’s condition in an adequate manner.

69. What is more, after having been re-confirmed as HIV positive in June 2008 while detained in Zhytomyr prison, the applicant did not start receiving ART treatment until March 2009 (see paragraphs 19 and 22 above). Given the seriousness of the HIV infection, it was of utmost importance to commence the ART treatment without delay. The Government failed to present any convincing arguments justifying that delay. Moreover, they did not contest the applicant’s argument, which is corroborated by the case-file materials, that he did not receive regular check-ups or HIV tests (see paragraph 59 above).

70. As regards the first applicant’s treatment for hepatitis C, it was undisputed that in December 2007 he had been found to have antibodies against hepatitis C (see paragraph 17 above). However, the Government did not provide documentary evidence that the above‑mentioned condition had been met with an appropriate reaction on the part of the authorities, for example in the form of further testing, establishing the diagnosis and relevant treatment.

71. The Court further observes that in August 2010 the first applicant’s hepatitis C had worsened and become chronic (see paragraph 24 above). The Government again provided no information as to whether any treatment had been afforded to the applicant thereafter.

72. As regards application no. 54754/10 (Kashuba v. Ukraine), the Court observes that upon arrival at the Lutsk SIZO in September 2000 and then at the Vinnytsya SIZO in September 2001, the second applicant was considered as a person who had previously suffered TB (see paragraphs 32 and 33 above). However, the Government did not dispute that following a medical check‑up in March 2003, he had been diagnosed with TB (see paragraph 34 above). He had been examined dozens of times by the prison doctors and had apparently received certain treatment. Those circumstances, nevertheless, are not sufficient to convince the Court that the treatment comprised a comprehensive therapeutic strategy and that the overall treatment and care provided to him were in compliance with the requirements of Article 3 of the Convention.

73. The Court observes, in particular, that from June to August 2003 the second applicant did not receive any treatment for TB (see paragraph 35 above) and that from February 2007 to April 2014 he was diagnosed on many occasions with residual changes to his TB in the upper part of his left lung (see paragraphs 38 and 41 above). The Government further stressed that the applicant had had access to appropriate medical assistance. They, however, did not specify the nature of the treatment the second applicant had received during the above-mentioned period. Nor did they provide any documentary evidence, such as a copy of the applicant’s medical file or a list of medical prescriptions.

74. In the light of the foregoing, the Court finds that the medical care provided to the applicants was not adequate. As a result of the inadequacy of the medical care provided to them, they endured distress or hardship exceeding the unavoidable level of suffering inherent in detention, and their dignity was undermined.

75. There has therefore been a violation of Article 3 of the Convention in respect of both applicants.

B. Alleged violation of Article 3 of the Convention in respect of the conditions of detention of the second applicant (application no. 54754/10 – Kashuba v. Ukraine)

76. The second applicant complained that the physical conditions of his detention in the Ladyzhynka Correctional Colony had been appalling. He also complained that the treatment he had been subjected to since 21 February 2007 in that facility was incompatible with the requirements of Article 3 of the Convention.

1. Admissibility

77. The Court observes that the second applicant’s complaint in relation to his detention is twofold: (a) the material conditions of his detention; and (b) the use of handcuffs every time he was taken from his cell.

78. The Court observes that, in contrast to quite detailed complaints of handcuffing, most of the second applicant’s submissions concerning letter (a) in the above paragraph were limited to vague and general statements. They concerned allegations of limited use of a shower (once a week), lack of light and heating in the shower facilities, limited possibility to wash and dry his clothes, and lack of ventilation in his cell. The applicant did not provide the requisite details or substantiation (see paragraphs 45-47 above). He also failed to specify the nature and extent of the suffering caused by the impugned restrictions and to demonstrate that his suffering had reached the threshold of severity bringing the matter within the ambit of Article 3 of the Convention. Neither did he elaborate this complaint in his reply to the Government’s observations.

79. On the whole, the Court finds that the above matters, as raised by the second applicant in this part of the application, do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols (see, for instance and mutatis mutandis, Ukhan, cited above, §§ 64-66).

80. It follows that the second applicant’s complaint concerning the material conditions of his detention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

81. The complaint about the handcuffing of the second applicant whenever he was taken from his cell is on the contrary not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. Noting also that it is not inadmissible on any other grounds, the Court declares it admissible.

2. Merits

(a) The parties’ submissions

82. The second applicant reiterated his initial complaint that he had been handcuffed every time he had been taken from his cell, and had been escorted by a group of prison guards and dogs.

83. The Government submitted that the treatment to which the second applicant had been subjected as a life prisoner had been in compliance with domestic legislation.

(b) The Court’s assessment

84. In the case of Kaverzin v. Ukraine (no. 23893/03, § 153-63, 15 May 2012) the Court found that the issue of handcuffing all male life prisoners based on the domestic regulations allowing the authorities to use handcuffs as a measure of restraint without giving consideration to prisoners’ personal situation and the individual risk they might or might not present, was in breach of Article 3 of the Convention.

85. Furthermore, the practice of systematically handcuffing all life prisoners whenever they were taken out of their cell was also evidenced by the findings of the CPT following its visit to Ukraine in October 2005.

86. Having regard to the foregoing, the Court finds that the circumstances of the present case are similar to those in the Kaverzin case. In the present case, like in Kaverzin, the Government failed to provide any explanation regarding whether the authorities had given consideration to the applicant’s personal situation and the individual risk he might or might not present. In the absence of any fact or argument on the part of the Government capable of persuading the Court to reach a different conclusion in the present case, it finds that the use of handcuffs on the second applicant in the Ladyzhynka Colony constituted inhuman and degrading treatment and that there has been a violation of Article 3 of the Convention in this respect.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (APPLICATION No. 54754/10 – KASHUBA V. UKRAINE)

87. The second applicant complained that he had not had at his disposal an effective domestic remedy for his complaints in respect of the alleged inadequate medical treatment under Article 3 of the Convention. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in this 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

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

B. Merits

89. The Government disputed the applicant’s submissions and argued that there had not been a violation of Article 13 of the Convention.

90. 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 conditions of detention and a lack of medical treatment (see, among other authorities, Melnik, cited above, §§ 113-16; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; Ukhan, cited above, §§ 91-92; Iglin v. Ukraine, no. 39908/05, § 77, 12 January 2012; and Barilo v. Ukraine, no. 9607/06, §§ 104-05, 16 May 2013). Referring also to its above findings on the exhaustion of domestic remedies as regards the first applicant’s complaint regarding lack of medical treatment (see paragraph 56 above), the Court sees no reason to decide otherwise in the present case.

91. 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 second applicant’s complaints under Article 3 of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION (APPLICATION No. 12258/09 – IVANOV V. UKRAINE)

92. Lastly, the first applicant complained under Article 6 of the Convention of the unfairness of the trial ending in July 1997, under Article 7 of the Convention of the wrongful commutation of his death penalty to a life sentence, and, without providing any details, of a violation of his rights under Articles 17, 34 and 53 of the Convention.

93. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that the applicant’s complaint under Article 6 of the Convention is incompatible ratione temporis with the provisions of the Convention, which entered into force with respect to Ukraine on 11 September 1997. In addition to that, the complaint was submitted to the Court more than six months from the date on which a final decision was taken. As regards the applicant’s complaint under Article 7 of the Convention, the Court observes that the applicant did not allege of the severity of the life sentence as such; his complaint was limited to an allegation that his death sentence should have been commutted to that of a fixed-term imprisonment. The Court notes in this connection that a similar complaint has been examined and found to be manifestly ill-founded in the case of Naydyon v. Ukraine (no. 16474/03, § 49, 14 October 2010). As to the applicant’s complaints under Articles 17, 34 and 53 of the Convention, the Court finds that the material in its possession does not disclose any appearance of a violation of those provisions. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

94. 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

1. Application no. 12258/09 (Ivanov v. Ukraine)

95. The first applicant claimed compensation for pecuniary damage which he had incurred in order to purchase medicines. He did not specify the amount spent. As regards the non-pecuniary damage, he left it to the Court’s discretion to determine the amount of the award.

96. The Government did not comment on the applicant’s claims.

97. As the applicant’s submissions concerning pecuniary damage are not supported by any documentary proof enabling it to establish the relevant amount, the Court makes no award under this head. On the other hand, making its assessment on an equitable basis, the Court awards the applicant 7,500 euros (EUR) for non-pecuniary damage.

2. Application no. 54754/10 (Kashuba v. Ukraine)

98. The second applicant claimed EUR 20,000 in respect of non‑pecuniary damage.

99. The Government considered that claim excessive.

100. Making its assessment on an equitable basis, the Court awards the applicant EUR 9,800 for non-pecuniary damage. This amount is to be paid to his son, Mr Pavlo Volodymyrovych Kashuba.

B. Costs and expenses

1. Application no. 12258/09 (Ivanov v. Ukraine)

101. The first applicant claimed EUR 3,000 for the legal costs incurred before the Court. He asked that they be paid directly into his former representative’s bank account. He also claimed EUR 50 for administrative expenses.

102. The Government did not comment on the applicant’s claims.

103. Regard being had to the documents in its possession and to the legal aid granted to the first applicant (see paragraph 2 above), the Court awards EUR 650 under this head. The award is to be paid into the bank account of the applicant’s former representative, as indicated by the applicant (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116‑17, 7 November 2013, and Khlaifia and Others v. Italy [GC], no. 16483/12, 288, ECHR 2016 (extracts)).

2. Application no. 54754/10 (Kashuba v. Ukraine)

104. The second applicant claimed EUR 1,500 for the legal costs incurred before the Court and EUR 50 for administrative expenses.

105. The Government considered the amount claimed unsubstantiated.

106. Regard being had to the documents in its possession, to the legal aid granted to the second applicant (see paragraph 2 above) and the fact that his representative intervened in the proceedings at the communication stage only, the Court makes no award under this head.

C. Default interest

107. 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. Decides to join the applications;

2. Declares that the second applicant’s son, Mr Pavlo Volodymyrovych Kashuba, has standing to continue the present proceedings in the second applicant’s stead;

3. Declares the first applicant’s complaint under Article 3 of the Convention concerning the lack of access to adequate medical treatment relating to the period after 11 September 1997 admissible;

4. Declares the second applicant’s complaint under Article 3 of the Convention concerning the lack of access to adequate medical treatment admissible;

5. Declares the second applicant’s complaint under Article 3 of the Convention concerning the use of handcuffs in the Ladyzhynka Colony admissible;

6. Declares the second applicant’s complaints under Article 13 of the Convention concerning the lack of an effective domestic remedy for his claims concerning lack of adequate medical treatment while in detention admissible;

7. Declares the remainder of the applications inadmissible;

8. Holds that there has been a violation of Article 3 of the Convention in respect of both applicants’ lack of access to adequate medical treatment while in detention;

9. Holds that there has been a violation of Article 3 of the Convention as regards the use of handcuffs on the second applicant in the Ladyzhynka Colony;

10. Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy under domestic law for the second applicant’s complaints in respect of the lack of adequate medical treatment while in detention;

11. 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 7,500 (seven thousand five hundred euros) to the first applicant, Mr Aleksandr Viktorovich Ivanov, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 9,800 (nine thousand eight hundred euros) to the second applicant’s son, Mr Pavlo Volodymyrovych Kashuba, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 650 (six hundred and fifty euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses, to be paid into the bank account of the first applicant’s former representative, Mr Igor Karaman;

(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;

12. Dismisses the remainder of the applicants’ claims 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

 

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