CASE OF VOROBYEV v. UKRAINE

FIFTH SECTION

CASE OF VOROBYEV v. UKRAINE

(Application no. 28242/10)

JUDGMENT

STRASBOURG

16 October 2014

FINAL

16/01/2015

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

In the case of Vorobyev v. Ukraine,

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

Mark Villiger, President,
Ann Power-Forde,
Ganna Yudkivska,
Vincent A. De Gaetano,
André Potocki,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 23 September 2014,

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

PROCEDURE

1. The case originated in an application (no. 28242/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yuriy Vyacheslavovich Vorobyev (“the applicant”), on 20 April 2010.

2. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice.

3. On 24 September 2012 the application was communicated to the Government.

THE FACTS

4. The applicant was born in 1972 and before his arrest lived in Kerch. In 2000 he contracted pulmonary tuberculosis. It remains unknown whether the applicant received any treatment for this condition while at liberty.

I. CRIMINAL PROCEEDINGS AGAINST THE APPLICANT AND PHYSICAL CONDITIONS OF HIS DETENTION

A. Criminal proceedings

5. On 31 January 2009 the applicant was arrested on suspicion of having committed an armed robbery and was taken to a police station. He claimed that he had been physically ill-treated at the police station and forced to sign a waiver of his right to a lawyer. However, he did not provide any documentary evidence that he sustained injuries on that date. The applicant also alleged, without providing further details or any evidence, that he had not been given enough time to prepare his defence. On the same date the applicant was questioned without a lawyer being present.

6. On 27 April 2009 the Kerch Town Court found the applicant guilty of unlawful possession of a weapon and armed robbery, sentenced him to nine years’ imprisonment and ordered the confiscation of all his property. The conviction was based on various items of evidence, including statements made by the applicant himself at the trial, in which he admitted to having bought a weapon and broken into a flat to rob an old woman. The applicant did not appeal against the judgment.

7. On an unspecified date he lodged a cassation appeal with the Supreme Court and complained that the evidence against him had been falsified, that the first-instance court had not examined the witnesses and evidence properly, and that his guilt had not been properly established. He did not complain about the lack of access to a lawyer or the insufficient time to prepare his defence. On 15 October 2009 the Supreme Court rejected his cassation appeal as unfounded. The applicant received the copy of this decision on 27 October 2009.

8. On 10 January 2011 the Court asked the applicant to provide copies of relevant documents from the criminal case file. The applicant applied to the first-instance court in this respect. On 16 March 2011 the president of the first-instance court rejected the request, noting that there was no legal basis in domestic law.

9. On several occasions the applicant requested that the first-instance court give him access to the case file, but to no avail.

B. Physical conditions of detention

10. Between 1 February and 26 March 2009 the applicant was held in the Simferopol Temporary Detention Facility (ITT). Between 26 March and 7 July 2009 he remained in the medical unit of the Simferopol Pre-trial Detention Facility (SIZO). According to the applicant, the conditions of his detention in the ITT and the SIZO were deplorable.

11. Between 7 and 13 July 2009 the applicant was held in Prison no. 7 for prisoners suffering from tuberculosis.

12. Between 13 July and 14 August 2009 the applicant was held in the specialist tuberculosis hospital in Prison no. 61.

13. On 14 August 2009 the applicant returned to Prison no. 7 and remained there until 1 December 2010. According to the applicant, in the autumn the temperature in the cells was around 12oС, while in winter it was only two degrees warmer than outdoors. The windows in the prison cells were covered with polyethylene sheets instead of glass, the cells were damp, and the food was inadequate. The applicant did not provide any further details about the cells or the food.

14. The Government argued that the applicant’s description of the conditions in Prison no. 7 was inaccurate. According to them, the prison was heated by its own boiler plant, which in 2009 began operating on 21 October, while in 2010 it began on 8 October. During the autumn-winter periods of 2009-11 the temperature in the prison premises was: 18-20oC in the residential area, 20-22oC in the medical facilities, and 25-27oC in the bath-and-laundry wing. All the windows in the prison were properly glazed prior to the beginning of the cold season. The cells had natural ventilation. The humidity in the cells was measured daily. The level was 44%, which was normal. The food which the applicant received was in compliance with national legislation. The Government supported their description of the conditions in Prison no. 7 by certificates issued by the prison administration.

15. On 1 December 2010 the applicant was sent to Simferopol Prison no. 102 for healthy detainees. He was detained there until 27 January 2011.

16. From 27 January to 9 February 2011 the applicant was detained in Prison no. 7.

17. From 9 February 2011 onwards the applicant was detained in Prison no. 102.

II. MEDICAL ASSISTANCE IN DETENTION FACILITIES

18. According to the applicant, on 1 February 2009 he informed the ITT paramedic that he was suffering from tuberculosis. According to the Government, the applicant did not inform the ITT administration that he had any health problems.

19. On 5 February 2009 a radiography examination revealed changes in the applicant’s lungs and it was recommended that he be examined by a specialist.

20. On 9 February 2009 the applicant underwent blood and sputum tests in Kerch Municipal TB Hospital no. 1 and was examined by a specialist. On the same date the ITT administration asked the TB hospital to assess whether the applicant required medical treatment and isolation in connection with his tuberculosis.

21. On 2 March 2009 the applicant underwent another radiology examination in the TB hospital. The radiologist who conducted the examination noted that the applicant had “disseminated infiltrated TB”. However, laboratory tests carried out on the same date did not confirm that diagnosis, having revealed no tuberculosis bacteria in the applicant’s blood and sputum.

22. On 19 March 2009 the doctors of the TB hospital, having studied the results of the above-mentioned medical tests and examinations, concluded that (i) the changes in the applicant’s lungs discerned from the radiography images were post-tuberculosis scars indicating that his tuberculosis had been cured; (ii) there were no tuberculosis bacteria in the applicant’s blood and sputum; (iii) the applicant did not need medical treatment or isolation; and (iv) he fell within category 5.1 (see the Order of the Ministry of Health of Ukraine no. 384 of 9 June 2006 below). Those conclusions were sent to the ITT administration.

23. On 26 March 2009, following the applicant’s arrival at the SIZO, it was established that his tuberculosis had reactivated. He was placed in the SIZO medical unit and started receiving anti-tuberculosis medication. He also underwent an unspecified number of medical tests aimed at establishing the exact type of his tuberculosis. The applicant did not provide further details about the tuberculosis treatment he received in the SIZO.

24. On 8, 9 and 10 July 2009 the applicant underwent sputum tests and a radiography examination of the thorax.

25. Between 13 July and 14 August 2009 the applicant underwent bronchoscopy examination and was diagnosed with recurrent infiltrative tuberculosis and chronic bronchitis. He was prescribed treatment for his diseases, which he subsequently received. The case-file contains a certificate noting that the treatment for tuberculosis which the applicant received from 13 to 22 July 2009 was “ineffective”.

26. On 17 August and 19 August 2009 the applicant underwent a microscopic sputum examination.

27. On 8 October 2009 the applicant underwent a radiography examination of the thorax.

28. On 28 October 2009 the applicant’s medical treatment for tuberculosis was modified.

29. On 8 December 2009 the applicant was examined by a doctor, who diagnosed him with cervical and thoracic osteochondrosis.

30. On 17 December 2009 the applicant underwent another sputum test.

31. On 20 January 2010 a radiography examination of the applicant’s thorax revealed “some positive dynamics” in the state of his lungs.

32. On 22 April 2010 the applicant was examined by a neuropathologist and diagnosed with osteochondrosis of the lumbar spine.

33. On 27 April 2010 the applicant underwent another radiography examination of the thorax.

34. On 28 April 2010 the applicant underwent a radiography examination of the spine and was diagnosed with diffuse osteoporosis and osteosclerosis. On the same date he was examined by a neuropathologist, who prescribed him medication for those diseases. He subsequently received that medication. No further information about the gravity of the applicant’s osteoporosis, osteosclerosis and osteochondrosis or their progress was made available to the Court.

35. On 30 April 2010 the applicant was examined by a doctor. On 5 May 2010 he underwent an electrocardiogram, and spirography and sputum tests.

36. On 11 May 2010 the applicant was again examined by the doctor, who diagnosed him with chronic bronchitis and prescribed medication, which the applicant subsequently received. The applicant did not inform the Court about the progress of his bronchitis.

37. On 14 July 2010 the applicant’s anti-tuberculosis treatment was modified.

38. On 4 August 2010 the applicant underwent a sputum test, which revealed that the tuberculosis bacteria were not increasing.

39. On 11 August 2010 the applicant underwent another radiography examination of the thorax.

40. On 5 October 2010 the applicant underwent another sputum test, which revealed no tuberculosis bacteria.

41. On 3 November 2010 the applicant underwent a radiography examination of the thorax.

42. The applicant’s anti-tuberculosis treatment was completed on 26 November 2010 because he had recovered. He was registered as a person requiring regular follow-up radiography examinations of the lungs.

43. On 27 January 2011 the applicant underwent laboratory tests and a chest X-ray, which confirmed that he had recovered from tuberculosis and no longer required treatment.

44. The applicant stated before the Court, without having submitted any evidence or further details, that his eyesight had deteriorated as a result of the anti-tuberculosis treatment, and that he had been allergic to the anti-tuberculosis medication he had received.

III. RELEVANT DOMESTIC LAW

Order of the Ministry of Health of Ukraine no. 384 of 9 June 2006 on Approval of the Protocol of Medical Assistance for Patients with Tuberculosis

45. According to Order no. 384 of the Ministry of Health there are five main categories and five sub-categories for the recording of those who have TB or may be affected by it. Patients with residual changes of various organs after the TB has healed fall into category 5.1.

46. The relevant part of the Order reads as follows:

“Detection of tuberculosis includes the following stages:

1. Examination of a patient’s complaints

2. Radiography examination

3. Acid-fast bacteria smear and culture tests

In the event that radiography reveals changes in a person’s lungs, he or she must undergo microscopic sputum examinations on three consecutive days.

When establishing diagnosis of tuberculosis, preference should be given to laboratory tests – acid-fast smear and culture.

Patients with category 5.1 TB should undergo chest X-rays at least every six months during the first year of monitoring.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION

47. The applicant complained that the conditions of detention in Prison no. 7, the SIZO and the ITT had been deplorable and had not met the requirements of Article 3 of the Convention. In particular, the conditions of detention in the latter establishment had led to the reactivation of his tuberculosis. Articles 3 of the Convention reads as follows:

Article 3

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

A. Conditions of detention in the ITT and SIZO

48. The Government argued that the conditions of the applicant’s detention had been adequate.

49. The Court considers that pursuant to Article 35 § 1 of the Convention it cannot examine the merits of the complaints about the conditions of detention in the ITT and SIZO as they concern the periods that ended on 26 March 2009 and on 7 July 2009, respectively, that is more than six months before the application was submitted to the Court. This part of the application is therefore inadmissible.

B. Conditions of detention in Prison no. 7

50. The Court observes at the outset that the applicant’s complaint about the conditions of his detention in Prison no. 7 from 14 August 2009 to 1 December 2010 and from 27 January to 9 February 2011 was lodged within the six-month time-limit.

51. The Court next reiterates that in order to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim. Cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in such instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. Accordingly, the Court is mindful that the applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Nevertheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see Danilov v. Ukraine, no. 2585/06, § 78, 13 March 2014, with further references).

52. In the Court’s opinion, this requirement has not been met in the present case, as the applicant’s complaints regarding to the conditions of detention in Prison no. 7 have been limited to vague and general statements, which do not enable it to conclude that his suffering reached the threshold of severity required by Article 3 of the Convention.

53. In particular, the applicant alleged that the cells in which he had been detained were damp and cold, and that the food was of poor quality. He did not, however, submit any evidence or further details in this respect. The Court notes at the same time that the Government contested the applicant’s argument, referring to the certificates issued by the prison administration.

54. Furthermore, the Court has never found a violation of Article 3 of the Convention in respect of the conditions of detention in Prison no. 7 from which it could draw inferences in favour of the applicant’s allegations in the present case (see, e.g., the case of Izzetov v. Ukraine, no. 23136/04, § 42, 15 September 2011). The Court notes that the applicant’s statements concerning conditions of his detention were not corroborated by statements of inmates with whom he shared his cells. The Court also notes that the applicant recovered from tuberculosis in Prison no. 7.

55. In view of the above, the Court considers that the complaint about the conditions of detention in Prison no. 7 has not been properly substantiated.

56. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF INADEQUATE MEDICAL ASSISTANCE AND FAILURE TO SAFEGUARD THE APPLICANT’S HEALTH IN DETENTION

57. The applicant complained that he was not provided with appropriate treatment for his tuberculosis while in detention. The treatment he received was inadequate, and resulted in an allergy and a deterioration of his eyesight. Moreover, in detention he acquired ostheochondrosis and bronchitis.

58. The Government insisted that the applicant had been constantly under medical supervision in connection with all of his health problems. His complaints were never ignored. In addition, his treatment for tuberculosis had been effective as it had led to his recovery.

A. Tuberculosis

59. The Court observes that during his confinement in the ITT the applicant underwent a number of medical tests aimed at establishing whether he needed treatment for tuberculosis. Based on the results of those tests, the civilian doctors established that, although the applicant had manifested some post-tuberculosis changes, he did not require medical treatment (see paragraph 23 above). The Court does not find reasons to doubt that finding.

60. As soon as it was established that the applicant’s tuberculosis had reactivated, he was provided with comprehensive treatment, which led to his recovery. There is no evidence in the case file that the applicant was allergic to that treatment or that the treatment affected his eyesight. Furthermore, the applicant did not provide any details about the manifestation of the allergy or the gravity and nature of the eyesight deterioration. The Court also notes that it has not been demonstrated that the applicant’s requests for medical assistance were refused.

61. In the light of the above, it cannot be concluded that the medical assistance which the applicant received in connection with his tuberculosis was inadequate.

62. It follows that this part of the application was not properly substantiated by the applicant and must therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Osteochondrosis and Bronchitis

63. The Court notes that there is no indication that the authorities were responsible for the development or exacerbation of the applicant’s osteochondrosis and bronchitis, or that the applicant requested but was denied medical treatment for them. The Court also notes that the applicant did not specify the extent of suffering caused to him by those diseases or submit any information about their progress after 2010.

64. The Court thus considers that this part of the application is unsubstantiated and must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED NON-COMPLIANCE WITH ARTICLE 34 OF THE CONVENTION

65. The applicant complained that after the termination of the criminal proceedings against him, he was unable to obtain copies of the materials from his criminal case file.

66. The Government argued that the applicant could have made copies of the necessary documents when he studied the case file in the course of the proceedings. They also stated that the authorities’ refusal to issue the applicant copies of documents did not prevent him from applying to the Court.

67. The Court notes that it has already dealt with similar situations in a number of cases concerning Ukraine. In particular, in Vasiliy Ivashchenko v. Ukraine (no. 760/03, § 123, 26 July 2012) the Court found that the Ukrainian legal system did not provide prisoners with a clear and specific procedure enabling them to obtain copies of case-file documents after the completion of criminal proceedings, either by making such copies themselves, whether by hand or using appropriate equipment, or by having the authorities make copies for them.

68. In the present case, the Government did not provide any reason for the Court to depart from its findings under Article 34 of the Convention in Vasiliy Ivashchenko (cited above, §§ 103-110 with further references). Accordingly, the Court concludes that the respondent State has failed to comply with its obligation under Article 34 of the Convention to furnish all necessary facilities to the applicant in order not to hinder proper and effective examination of his application by the Court.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

69. The applicant further complained that he had been unlawfully arrested. He complained, under Article 3 of the Convention, that police officers had ill-treated him after his arrest. He also complained, under Articles 6 and 13 of the Convention, that he had not been provided with a lawyer and had been forced to sign a waiver of the right to a lawyer; he had not had enough time to prepare his defence; and the courts had failed to examine the evidence properly and to question all the witnesses. The applicant also alleged that, contrary to Article 14 of the Convention, he had been subjected to discriminatory treatment on the grounds that he was Russian-speaking and had been a prisoner.

70. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

71. 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

72. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.

73. The Government contested his claim.

74. The Court, ruling on an equitable basis, awards the applicant EUR 1,500 in respect of non-pecuniary damage.

B. Costs and expenses

75. The applicant did not lodge any claims for costs and expenses. The Court therefore sees no call to make an award under this head.

C. Default interest

76. 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. Declares the applicant’s complaints concerning violations of Articles 3, 5, 6, 13 and 14 of the Convention inadmissible;

2. Holds that the State has failed to comply with its obligations under Article 34 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement.

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

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

Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

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