CASE OF VASILIY IVASHCHENKO v. UKRAINE (No. 2)

FIFTH SECTION

CASE OF VASILIY IVASHCHENKO v. UKRAINE (No. 2)

(Application no. 1976/13)

JUDGMENT

This version was rectified on 28 May 2021

under Rule 81 of the Rules of Court

STRASBOURG

22 April 2021

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

In the case of Vasiliy Ivashchenko v. Ukraine (No. 2),

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

Arnfinn Bårdsen, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 1976/13) 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 Vasiliy Nikolayevich Ivashchenko (“the applicant”), on 12 March 2007;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the alleged ill-treatment of the applicant and its investigation, the conditions of his detention, and the alleged refusal to provide him with copies of documents from his medical file, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 1 April 2021,

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

INTRODUCTION

1.  The case concerns: the applicant’s alleged ill-treatment by the staff at a detention facility, and the effectiveness of the investigation into the matter (Article 3 of the Convention); conditions of detention and adequacy of medical care (Article 3); and the State’s compliance with its obligations under Articles 34 and 38 of the Convention.

THE FACTS

2.  The applicant was born in 1961 and is serving a life sentence. He was granted legal aid and was represented by Mr M. Tarakhkalo, Mr M. Kikkas, Mr Y. Chekaryov, Ms O. Kuvayeva and Ms. O. Chylutyan, lawyers practising in Kyiv.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.Background

5.  In his earlier application to the Court (Vasiliy Ivashchenko v. Ukraine, no. 760/03, 26 July 2012) the applicant alleged, in particular, that he had sustained several rib fractures as a result of his ill-treatment by the police following his arrest in April 1998 (§ 11). The Court did not consider that particular allegation to be substantiated by evidence (§ 78).Alleged ill-treatment of the applicant and the domestic investigation thereof

6.  On 5 March 2012 the applicant was taken to the Cherkasy pre-trial detention facility (“SIZO”).

7.  According to him, as soon as he arrived there, several officers subjected him to a severe beating, without any reason. The applicant allegedly sustained a number of bruises, including to the pelvic area, and had two ribs fractured.

8.  As further submitted by the applicant, on 5 March 2012 a doctor examined him in the SIZO medical unit and provided him with medical assistance: ointment was administered to his pelvic area, and he was given a painkiller and an intravenous injection.

9.  According to the Government, there was no incident involving the applicant on 5 March 2012. They submitted that, as it appeared from the available case-file materials, upon his arrival at that detention facility, he had complained of chest pain, shortness of breath and pain in the pelvic area and had been provided with adequate medical assistance.

10.  On the same day – 5 March 2012 – the applicant wrote a statement, allegedly under threat of further violence from the SIZO governor, that he had no complaints in respect of the SIZO staff.

11.  According to the applicant, on 6 March 2012 he was examined by a doctor and had his chest X-rayed. The X-rays allegedly established that his eighth and ninth ribs on the left side had been fractured. The applicant further submitted that on that date the doctor had prescribed him antibiotics for seven days, as well as painkillers and an ointment for the pelvic area.

12.  According to the Government, the applicant’s medical file did not contain any documents dated 6 March 2012.

13.  On 6 June 2012 the applicant was transferred from the Cherkasy SIZO to the Kyiv SIZO. He was detained in the Kyiv SIZO until 24 June 2012[1], after which he was transferred to Zamkova Prison.

14.  On 15 April 2013[2] he complained about his alleged ill-treatment on 5 March 2012 to the Prosecutor General’s Office. His complaint was forwarded to the Cherkasy Regional Prosecutor’s Office (“the Cherkasy Prosecutor”). On 14 June 2013 the latter informed the applicant in writing that his complaint “about possible illegal actions by the Cherkasy SIZO officials” had been duly examined and had been found to be unsubstantiated.

15.  On 16 October 2013, in reply to another complaint from the applicant, of 13 September 2013, the Cherkasy Prosecutor again informed him that there were no grounds for prosecutorial intervention. The prosecutor referred to a medical certificate in the applicant’s file which suggested that on 5 March 2012, upon his arrival at the Cherkasy SIZO, the applicant had complained of chest pain, shortness of breath and pain in the pelvic area, and that, following his medical examination, he had been provided with the necessary medical assistance. The prosecutor also referred to the written statement by the applicant concerning the absence of any complaints against the Cherkasy SIZO staff.

16.  On 2 June 2015 the head of the Zamkova Prison medical unit, in which the applicant was detained at the material time, issued, at the latter’s request, an information note about the medical care provided to him in detention. It stated, among other matters (see paragraphs 30 and 36 below), that on 6 May 2015 a surgeon had examined the applicant and had recorded that the latter had a healed fracture of the eighth and the ninth ribs on the left side. No further details were mentioned. It was observed that, as of the date of the information note, the applicant’s health condition was satisfactory.

17.  In February 2018 the Cherkasy SIZO destroyed its 2012 logbook of complaints and applications, on the expiry of the five-year statutory minimum storage period.

18.  In February 2019 the documentation regarding the applicant’s complaints to the prosecution authorities in 2013 was also destroyed on the expiry of the statutory minimum storage period.Material conditions of detentionIn the Kyiv SIZO

19.  The applicant was detained in that detention facility from 15 December 2012 to 24 January 2013, in a cell of 15 sq. m shared by four inmates.

20.  According to the applicant, his cell was damp, dark and cold, with water running down the walls. The toilet was separated from the living area by a partition that was about 1.5 m. high, with no door. A video camera was placed directly over the toilet area. No table was available. The administration allegedly rejected the applicant’s requests for a transfer to a different cell for lack of available places.

21.  According to the Government, the cell was equipped with all the required furniture. It had good access to natural and artificial light, a centralised water supply, and an artificial ventilation system. The temperature inside never went below 18oC. Inmates had access to shower and laundry facilities once a week, for at least forty minutes. They also had a one-hour outdoor walk on a daily basis.In other detention facilities

22.  The applicant also alleged that he had been detained in poor conditions in the Vinnytsya SIZO from 12 to 21 August 2011 and from 22 to 27 April 2015, and in Shepetivka Prison from 17 August to 16 October 2012.

23.  The Government submitted that the conditions of the applicant’s detention in those detention facilities had been acceptable.Medical care for a hydrocele and other genital health problems

24.  On 10 December 2008 the applicant underwent surgery in the Shepetivka Prison hospital on account of an inguinal hernia. No complications were reported. On 26 December 2008 he was discharged from hospital in a satisfactory condition.

25.  According to the applicant, shortly thereafter his right testicle swelled considerably and became very painful. His requests for medical assistance in that regard were allegedly disregarded.

26.  The applicant also submitted that, following further aggravation of his condition in March 2012, he was given antibiotics and an ointment was administered to his pelvic area (see also paragraph 11 above).

27.  From 17 August to 17 September 2012 the applicant underwent inpatient medical treatment in the Shepetivka Prison hospital in respect of an aggravation of chronic right-sided orchiepididymitis (testicle inflammation), along with some other unrelated health concerns.

28.  According to the applicant, in January 2013 a surgeon examined him in the Kyiv SIZO (where he was detained between 15 December 2012 and 24 January 2013 – see paragraph 19 above) and concluded that he required urgent surgery.

29.  The copy of the applicant’s medical file provided to the Court (see paragraph 38 below) does not contain any documents dated January 2013. Nor does it contain any records made after the applicant’s discharge from hospital on 17 September 2012 (see paragraph 27 above) until April 2016. The records starting from 1 April 2016 do not mention any genital health concerns.

30.  As indicated in the information note issued by the head of the medical unit of Zamkova Prison on 2 June 2015 (see also paragraph 16 above and paragraph 36 below), on 6 May 2015 a surgeon diagnosed the applicant as having a hydrocele of the right testicle and recommended elective surgery in that regard.

31.  On 15 February 2019 the Cherkasy regional healthcare unit of the State Prison Service (Філія Державної установи «Центр охорони здоров’я ДКВС України» у Черкаській області), which was in charge of the Cherkasy SIZO, issued an extract from the applicant’s medical file, apparently at the latter’s request. The “Full diagnoses” section read as follows: “Ischaemic heart disease, atherosclerosis, cardiosclerosis, chronic pulmonary heart disease, hypertonic disease of the second degree (medium gravity), chronic obstructive bronchitis, chronic obstructive pulmonary disease, chronic right-sided orchiepididymitis, a healed fracture of the eighth and ninth ribs on the left side.” It was noted that the applicant had been undergoing regular medical examinations and outpatient treatment on account of the main diseases listed, and that he had undergone surgery on 10 December 2008.

32.  On 5 March 2020 the applicant underwent surgery in the Shepetivka Prison hospital on account of the hydrocele.

33.  In June 2020 a surgeon recommended to the applicant that he have elective surgery in respect of a testicular cyst. On 3 December 2020 that surgery was carried out.The applicant’s requests for copies of medical documents

34.  On numerous occasions in 2013 and 2015 the applicant applied to the administration of the Cherkasy SIZO, the Kyiv SIZO and Zamkova Prison for copies of documents from his medical file pertaining, in particular, to his examination and treatment in the Cherkasy SIZO following his arrival there on 5 March 2012. He specified that he required them to substantiate his application before the Court.

35.  No such copies were provided to him. The administration of both SIZOs wrote to the applicant that they were no longer in possession of his medical documents, after his transfer to a different detention facility.

36.  On 2 June 2015 the head of the medical unit of Zamkova Prison issued an information note on the applicant’s health condition and medical treatment. It mentioned, in particular, the applicant’s treatment in the Shepetivka Prison hospital from 17 August to 17 September 2012 (see paragraph 27 above) and his consultation with a surgeon on 6 May 2015 (see paragraphs 16 and 30 above). It also noted that the applicant’s regular medical examinations, including on 29 June and 16 October 2012, had documented neither any injuries nor any complaints. The documents requested by the applicant were neither mentioned in the information note nor enclosed with it.

37.  On 8 August 2019 the State Prison Service administration (Адміністрація ДКВС України) wrote to the Government’s Agent that it was not possible to either confirm or refute the applicant’s allegation that his requests for documents from his medical file had been refused “because the State Prison Service’s healthcare centre had not received the necessary information”.

38.  On 31 January 2020 the Khmelnytskyy regional healthcare unit of the State Prison Service (Філія Державної установи «Центр охорони здоров’я ДКВС України» у Хмельницькій області), which was in charge of Zamkova Prison, sent a copy of the applicant’s medical file to his lawyer. The earliest record for 2012 was dated 25 July 2012, and there were no records for the period between 17 September 2012 and 1 April 2016 (see paragraph 29 above).The Government’s compliance with the Court’s request for information and documents

39.  Along with giving notice to the Government of certain complaints, the Court also requested the Government “to submit copies of all documents relevant to the applicant’s complaints, including but not limited to: regarding his alleged ill-treatment on 5 March 2012 and his requests for medical assistance on account of his genitalia-related problem and the relevant decisions of the authorities; all relevant medical reports, including the X-ray image allegedly made the day after the applicant’s ill-treatment and the relevant medical opinion on it, as well as information on the results of the applicant’s medical examination by a surgeon at Kyiv SIZO in January 2013”.

40.  The Government submitted that they were not able to provide the Court with any medical documents dated 6 March 2012 in respect of the applicant “owing to their absence from his [medical file]”. Nor did the Government submit copies of any other medical documents pertaining to the applicant’s detention in the Cherkasy SIZO from 5 March to 6 June 2012. No explanations or comments were provided in that regard.

41.  As regards the applicant’s statement that a surgeon had examined him in the Kyiv SIZO in January 2013, the Government submitted, relying on the information note issued by the prison authorities on 8 August 2019 (see paragraph 43 below), that no such medical record existed.

42.  The Government sent to the Court a copy of the information note issued by the resources management department of the State Prison Service administration (Управління ресурсного забезпечення Адміністрації ДКВС України) on 5 August 2019. It stated, in particular, that “on 5 March 2012, upon his arrival at the Cherkasy SIZO, the applicant complained of a deterioration in his health, following which he was examined by the [SIZO] medical specialists”. It also indicated that the Kyiv SIZO and the Cherkasy SIZO had destroyed the 2012 logbook of complaints on 5 January and 5 February 2018 respectively. The information note had some enclosures, which the Government did not send to the Court.

43.  In addition, the Government provided a copy of an information note issued by the healthcare centre of the State Prison Service (Державна установа «Центр охорони здоров’я ДКВС України») on 8 August 2019. It stated that on 5 March 2012, upon the applicant’s arrival at the Cherkasy SIZO, he had been examined by medical specialists who had diagnosed him with a hypertonic disease and chronic obstructive pulmonary disease, and had prescribed the required treatment. The information note also stated that there was no record regarding the applicant’s examination by a surgeon in January 2013 in the Kyiv SIZO “owing to the short period of the applicant’s detention in that facility, namely from 6 to 29 June 2012”.

RELEVANT DOMESTIC LAW AND PRACTICE

44.  Relevant domestic legislation concerning conditions of detention can be found in Sukachov v. Ukraine (no. 14057/17, §§ 51-65, 30 January 2020).

45.  The 2012 report of the Ukrainian Parliament Commissioner for Human Rights, entitled “Monitoring of custodial settings in Ukraine: current implementation of the national preventive mechanism”, notably criticised the Kyiv SIZO for “improper sanitary conditions for transit prisoners”, “poor technical condition of the water supply and sewage systems”, “excessive humidity and fungus on the walls”, and “cell toilets being in improper condition and having no flushes” (pp. 82-83).

RELEVANT international material

46.  Relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 9 to 21 October 2013 (CPT/Inf (2014) 15) can be found in Borzykh and Others v. Ukraine ([Committee], nos. 5353/14 and 2 others, § 12, 25 June 2020).

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ALLEGED ILL-TREATMENT OF THE APPLICANT

47.  The applicant complained that he had been ill-treated by the Cherkasy SIZO staff on 5 March 2012 and that there had been no effective investigation in that regard. 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.”The parties’ submissions

48.  The applicant maintained his account of the events of 5 March 2012 (see paragraphs 7-8 above). He submitted that, prior to March 2012, he had not been diagnosed either with any rib fractures or with chronic orchiepididymitis or a hydrocele. According to the applicant, those later diagnoses, which the Government had allegedly failed to explain, corroborated his allegation of ill-treatment.

49.  The applicant also pointed out that the medical records regarding the deterioration of his health on 5 March 2012 had been made available neither to him nor to the Court. He invited the Court to draw factual inferences in his favour from that.

50.  The applicant contended that he had been scared to raise any complaints as long as he had remained under the control of the Cherkasy SIZO officials. He argued that later he had sent numerous complaints to various authorities, but no meaningful effort had been made to establish the truth and to punish those responsible.

51.  Lastly, the applicant submitted that, as established by the CPT, the practice of ill-treatment of inmates in Ukrainian prisons had been widespread in 2011 and 2012.

52.  The Government submitted that the applicant’s complaint was unsubstantiated. They argued that, as it appeared from the materials available in the case file, his complaint of ill-treatment had been duly investigated and had been rightly rejected as unfounded.The Court’s assessment

53.  The Court’s approach to assessing evidence when examining allegations of ill-treatment is summarised, for example, in Bouyid v. Belgium ([GC], no. 23380/09, §§ 82-83, ECHR 2015).

54.  The Court has held that applicants are expected to submit at the very least a detailed account of the facts complained of and to provide – to the greatest possible extent – some evidence in support of their complaints (see Kushnir v. Ukraine, no. 42184/09, § 102, 11 December 2014). Such evidence might include eyewitness statements or any documents showing that the applicant had entered police premises in good health but left them having sustained injuries (see, for example, Gorbatenko v. Ukraine, no. 25209/06, § 120, 28 November 2013).

55.  Where an individual raises an arguable claim that he or she has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012).

56.  Turning to the present case, the Court notes from the outset that it has no medical documents before it pertaining to the applicant’s detention in the Cherkasy SIZO. It will later analyse the applicant’s inability to obtain that evidence and the Government’s failure to provide it to the Court from the standpoint of Articles 34 and 38 of the Convention (see paragraphs 86‑100 below). As regards the assessment of this issue in the context of the applicant’s complaint under Article 3 of the Convention, there is no doubt that the documents in question would have been of relevance. However, the Court does not consider that their absence alone is sufficient to draw factual inferences.

57.  The Court observes that, by claiming that he had never had any ribs fractured prior to his arrival at the Cherkasy SIZO, the applicant contradicted his submissions in his earlier application to the Court, in which he alleged that he had had several ribs fractured following his arrest in 1998 (see paragraph 5 above). The applicant did not submit that the X-ray report of 6 May 2012, on which he relied in substantiation of his complaint, had specified the timing of his rib fracture. The entry in his medical file of 6 May 2015, to the effect that he had a healed fracture of two ribs (see paragraph 16 above), did not shed any light on the timing of that fracture either: it might have occurred before the events at issue.

58.  Furthermore, although the applicant submitted that, prior to the alleged incident of 5 March 2012, he had not had chronic orchiepididymitis or a hydrocele, it is undisputed that he had had certain genital health concerns since 2008 (see paragraph 24 above).

59.  As suggested by some case-file[3] materials, on 5 March 2012 the Cherkasy SIZO medical staff documented the applicant’s complaints of chest pain, shortness of breath and pain in the pelvic area (see paragraph 15 above). There was nothing to suggest, however, that those ailments had resulted from his ill-treatment earlier that day rather than had developed from his pre-existing medical conditions. Indeed, the applicant did not claim that the medical records of 5 March 2012 had contained any evidence in support of his allegation of ill-treatment other than mentioning the ailments at issue and the treatment prescribed.

60.  The Court also notes that the applicant waited for more than a year before raising his complaint of ill-treatment at the domestic level (see paragraph 14 above). His argument that he was scared of the Cherkasy SIZO staff as he remained under their control (see paragraph 50 above), does not stand up to scrutiny: by the time he complained of ill-treatment to the prosecution authorities, he had moved to at least three other detention facilities after the Cherkasy SIZO (see paragraphs 13 and 22 above).

61.  In the light of all the foregoing considerations, the Court considers that, regardless of the absence of certain relevant documents, which was not attributable to the applicant, he failed to establish an arguable complaint that he had been ill-treated as alleged. It is thus not open to the applicant to contest the effectiveness of the domestic investigation (see, for example, Kravchenko v. Ukraine (dec.), no. 23275/06, § 51, 24 June 2014, and H. P. v. Croatia (dec.), no. 45599/13, § 54, 16 June 2015).

62.  Accordingly, the Court rejects the applicant’s complaint under both the substantive and procedural limbs of Article 3 of the Convention as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION in respect of the applicant’s conditions of detention in the kyiv sizo

63.  The applicant complained that he had been detained in poor conditions in the Kyiv SIZO. He also alleged that he had not been provided with adequate medical treatment for his hydrocele and other genital health problems. 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.”Admissibility

64.  The Government submitted that it had been open to the applicant to raise his grievances before the local prosecutor’s offices, which were competent to verify his allegations and, if applicable, to oblige the administration of the detention facility in question to put an end to any violations found.

65.  The applicant argued that the remedy cited by the Government could not be regarded as effective.

66.  The Court has held on many occasions that a complaint to a prosecutor in Ukraine cannot be considered an effective remedy in respect of complaints about the conditions of detention (see Melnik v. Ukraine, no. 72286/01, § 69, 28 March 2006; Sokil v. Ukraine, no. 9414/13, § 38, 22 October 2015; and Sukachov v. Ukraine, no. 14057/17, §§ 118-23, 30 January 2020).

67.  There are no reasons for the Court to depart from that finding in the present case. The Court therefore considers that this part of the application cannot be rejected for failure to exhaust domestic remedies.

68.  The Court further notes it is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.MeritsMaterial conditions of detention in the Kyiv SIZO

69.  Referring to his description of the conditions of detention in the Kyiv SIZO (see paragraph 20 above), the applicant argued that they had been incompatible with the Convention standards.

70.  The Government, who maintained their account (see paragraph 21 above), submitted that the conditions of the applicant’s detention had been in compliance with the legal requirements.

71.  The Court notes that the relevant principles of its case-law have been set out in, for example, Muršić v. Croatia ([GC], no. 7334/13, §§ 137-41, 20 October 2016).

72.  In the present case the applicant was detained in the Kyiv SIZO for forty days (see paragraph 19 above). It is common ground between the parties that he had 3.75 sq. m of personal space (ibid.).

73.  The Court notes that the applicant’s description of the physical conditions of his detention is corroborated by the 2012 report of the Ukrainian Parliament Commissioner for Human Rights (see paragraphs 20 and 45 above).

74.  The Court further observes that it has already found a violation of Article 3 of the Convention on account of the lack of personal space afforded to applicants and other aspects of inappropriate physical conditions of detention in the Kyiv SIZO (notably, inadequate temperatures, infestation of cells with insects/rodents, lack of fresh air, inadequate hygienic facilities, insufficient natural light, lack of or poor quality of bedding and lack of privacy in using toilet) at about the time when the applicant in the present case was detained there (see the list of cases in Appendix to the judgment in Sukachov (cited above)).

75.  The Court finds no grounds for reaching a different conclusion in the present case.

76.  It follows that there has been a violation of Article 3 of the Convention on account of inadequate conditions of detention in the Kyiv SIZO.Medical treatment for the hydrocele and other genital health problems

77.  The applicant complained that he had not been afforded adequate medical care in respect of his hydrocele and other genital health problems. He pointed out that, although he had required surgery as early as January 2013, it had not been carried out for more than seven years.

78.  The Government argued that the applicant had been provided with the requisite medical care.

79.  The Court notes that the applicant had a long medical history of genital health problems, in particular an inguinal hernia, orchiepididymitis and a hydrocele (see paragraphs 24, 27 and 30 above). He received some medical attention on that account. The Court observes, in particular, that in December 2008 the applicant underwent surgery in respect of an inguinal hernia and in August-September 2012 he underwent inpatient medical treatment for chronic orchiepididymitis (see paragraphs 24 and 27 above).

80.  It is undisputed that on 6 May 2015 at the latest, elective surgery was recommended for the applicant in respect of the hydrocele, and that he had to wait for that surgery until March 2020 (see paragraphs 30 and 32 above).

81.  The Government did not explain the reasons for that delay.

82.  Furthermore, the absence of virtually any records regarding the applicant’s genital health problems in his medical file after the above‑mentioned recommendation for surgery (see paragraphs 29 and 31 above) indicates to the Court that there was no regular supervision of the applicant’s condition.

83.  According to the well-established case-law of the Court, the authorities must ensure that a comprehensive record is kept concerning a 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 (see, among many other authorities, Rooman v. Belgium [GC], no. 18052/11, § 147, 31 January 2019). Leaving a detained person without essential medical treatment as prescribed by medical experts over a substantial period of time and without satisfactory explanation amounts to inhuman and degrading treatment in breach of Article 3 of the Convention (see Peňaranda Soto v. Malta, no. 16680/14, § 78, 19 December 2017, with further case-law references).

84.  Having regard to the unexplained delay of at least five years in carrying out the applicant’s surgery in respect of the hydrocele, and the absence of any documented regular supervision of his condition, the Court considers that the medical care provided to the applicant cannot be regarded as adequate (compare Chupryna v. Ukraine [Committee], no. 876/16, §§ 39 and 42, 29 January 2019, and Beketov v. Ukraine [Committee], no. 44436/09, §§ 114 and 116, 19 February 2019).

85.  Accordingly, there has been a violation of Article 3 of the Convention on account of inadequate medical care provided to the applicant for his hydrocele and other genital health problems.THE GOVERNMENT’S COMPLIANCE WITH ARTICLEs 34 AND 38 OF THE CONVENTION

86.  The applicant complained that the domestic authorities had refused to provide him with copies of the medical documents relevant to his complaints under Article 3 concerning his alleged ill‑treatment and lack of adequate medical care. He relied on Article 34 of the Convention, which reads as follows:

“The Court may receive applications from any person ... 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.”

87.  In his post-communication observations, the applicant also submitted that the respondent Government had failed to comply with their duty to assist the Court, given that they had not provided all the documents requested by it. He relied on Article 38 of the Convention, which provides as follows:

“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”

88.  The Government argued that the applicant had been provided with copies of all the medical documents requested. Accordingly, they maintained, there had been no violation by the State of its obligations under Article 34 of the Convention.

89.  The Government did not comment on the issue of the State’s compliance with Article 38 of the Convention, which the applicant had raised in his observations (see paragraph 87 above).

90.  The Court considers that the applicant’s complaints must be examined jointly under Articles 34 and 38 of the Convention (see Lenev v. Bulgaria, no. 41452/07, § 165, 4 December 2012).

91.  Although the object of Article 34 of the Convention is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there are positive obligations inherent in Article 34 requiring the authorities to furnish all necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in situations where applicants are particularly vulnerable (see, among many other authorities, Klimov v. Russia, no. 54436/14, § 41, 4 October 2016, with further case-law references).

92.  A failure on a Government’s part, without a satisfactory explanation, to submit such information which is in their hands may not only give rise to the drawing of inferences as to the well‑foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by the respondent State with its obligations under Article 38 of the Convention (see, for example, Kagirov v. Russia, no. 36367/09, § 132, 23 April 2015, with further references).

93.  The parties are obliged to comply with the Court’s evidential requests and instructions, provide timely information on any obstacles in complying with them, and provide any reasonable or convincing explanations for failure to comply (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 208, ECHR 2013).

94.  The Court may establish a failure by the respondent Government to comply with their procedural obligations even in the absence of any admissible complaint of a violation of a substantive Convention right. Furthermore, it is not required that the Government’s alleged interference should have actually restricted, or had any appreciable impact on, the exercise of the right of individual petition. The Court has reaffirmed that the Contracting Party’s procedural obligations under Articles 34 and 38 of the Convention must be enforced irrespective of the eventual outcome of the proceedings and in such a manner as to avoid any actual or potential chilling effect on the applicants or their representatives (ibid., § 209).

95.  Turning to the present case, the Court notes that, in his requests for documents, the applicant informed the domestic authorities that the required copies of documents were necessary for him for the purpose of defending his rights before the Court (see paragraph 34 above; contrast Ustyantsev v. Ukraine, no. 3299/05, § 99, 12 January 2012). The Government did not dispute this.

96.  The applicant did not succeed in obtaining any documents pertaining to his initial medical examination upon his arrival at the Cherkasy SIZO on 5 March 2012, his detention there and medical treatment he apparently received (see paragraphs 8, 11 and 26 above). No explanation was ever provided to that. At the same time, it appears that the prosecutor did have access to a medical certificate regarding the applicant’s examination by the SIZO medical staff on 5 March 2012 and the assistance provided to him (see paragraph 15 above).

97.  The Court notes that, in spite of its own request for evidence (see paragraph 39 above), the Government did not submit a copy of a single medical document concerning the applicant’s detention in the Cherkasy SIZO from 5 March to 6 June 2012. Admittedly, the SIZO logbook of complaints and applications was destroyed on the expiry of the statutory minimum period for its storage (see paragraph 17 above). This did not, however, concern the applicant’s medical records.

98.  The Court also observes that the Government failed to clarify whether the applicant had been examined by a surgeon in the Kyiv SIZO in January 2013 and, if so, what the doctor’s findings had been. The Government contented themselves with relying on the prison authorities’ information note to the effect that it was impossible to answer that question “owing to the short period of the applicant’s detention in that facility, namely, from 6 to 29 June 2012” (see paragraph 43 above). Given the undisputed fact that the applicant was detained in the Kyiv SIZO from 15 December 2012 to 24 January 2013 (see paragraph 19 above), the Government’s answer cannot be regarded as satisfactory.

99.  The Court cannot but observe that the Government demonstrated no efforts to locate the missing documents or to clarify the contradictory submissions received from the domestic authorities (compare Gavrylova and Others v. Ukraine (dec.), no. 1227/06 and 10 other applications, § 105, 19 December 2017).

100.  In the light of the foregoing, the Court concludes that the respondent State has failed to comply with its obligations under Articles 34 and 38 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

101.  The applicant also complained under Article 3 of the Convention that the conditions of his detention in the Vinnytsya SIZO from 12 to 21 August 2011 and from 22 to 27 April 2015, as well as in Shepetivka Prison from 17 August to 16 October 2012, had been poor.

102.  Having regard to the facts of the case, the submissions of the parties and the above findings under Article 3 of the Convention (see paragraphs 76 and 85 above), the Court considers that the main legal questions in the present application have been determined. It holds, therefore, that there is no need to give a separate ruling on these remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).APPLICATION OF ARTICLE 41 OF THE CONVENTION

103.  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.”Damage

104.  The applicant claimed 2,000,000 euros (EUR) in respect of non‑pecuniary damage.

105.  The Government contested that claim as unsubstantiated and exorbitant.

106.  Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage that cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

107.  The applicant claimed EUR 7,800 for his legal representation in the proceedings before the Court.

108.  The Government maintained that, given the nature of the applicant’s complaints, the claim for legal expenses was exaggerated.

109.  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-mentioned criteria, the Court considers it reasonable to grant the applicant’s claim in part and to award him EUR 4,000 for the legal fees incurred before the Court (which is equal to EUR 4,850 less EUR 850, the sum received by way of legal aid – see paragraph 2 above), plus any tax that may be chargeable to the applicant. This award is to be paid into Mr Tarakhkalo’s bank account, as indicated by the applicant (see Belousov v. Ukraine, no. 4494/07, §§ 116-17, 7 November 2013).Default interest

110.  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,Declares the complaints under Article 3 of the Convention concerning the conditions of the applicant’s detention in the Kyiv SIZO from 15 December 2012 to 24 January 2013, as well as the adequacy of his medical treatment for a hydrocele and other genital health problems, admissible and the complaint under Article 3 concerning the applicant’s alleged ill-treatment and the effectiveness of its investigation inadmissible;Holds that there has been a violation of Article 3 of the Convention on account of the inadequate material conditions of the applicant’s detention in the Kyiv SIZO from 15 December 2012 to 24 January 2013;Holds that there has been a violation of Article 3 of the Convention on account of the inadequate medical care afforded to the applicant in detention in respect of his hydrocele and other genital health problems;Holds that the respondent State has failed to fulfil its obligations under Articles 34 and 38 of the Convention;Holds that there is no need to examine the admissibility and merits of the remaining complaints under Article 3 of the Convention concerning the conditions of the applicant’s detention in the Vinnytsya SIZO and in Shepetivka Prison;Holds

(a)  that the respondent State is to pay the applicant, 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 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of legal costs before the Court (the net award to be paid into the bank account of the applicant’s representative Mr Tarakhkalo);

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

Done in English, and notified in writing on 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Arnfinn Bårdsen
Deputy RegistrarPresident

[1] Rectified on 28 May 2021: the date was “24 January 2013”;

[2] Rectified on 28 May 2021: the date was “15 May 2013”.

[3] Rectified on 28 May 2021: the word was “case-law”.

 

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