Communicated on 2 July 2015 and 18 February 2017
FOURTH SECTION
Application no. 54754/10
Vladimir Mikhaylovich KASHUBA
against Ukraine
lodged on 10 September 2010
STATEMENT OF FACTS
The applicant, Mr Vladimir Mikhaylovich Kashuba, is a Ukrainian national, who was born in 1958 and lives in Lutsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 7 September 2000 the applicant was arrested on suspicion of robbery with killing.
On 14 September 2000 the applicant was placed in the Lutsk pre-trial detention centre (SIZO).
On 4 January 2001 the Volyn Regional Court found the applicant guilty of robbery with killing and convicted him to life imprisonment. On 24 May 2002 the Supreme Court refused the applicant’s appeal on points of law.
On 8 September 2001 the applicant was transferred to the Vinnytsya SIZO and was detained in the life-term prisoners’ block located on the basement floor.
On 22 February 2007 the applicant was transferred to the Ladyzhynka Correctional Colony no. 39 where he is currently serving his life sentence.
1. Medical treatment of the applicant
In March 2003, while being in the Vinnytsya SIZO, the applicant underwent a medical check and was diagnosed with tuberculosis (TB). After that the applicant was transferred to another cell from the basement to an upper floor.
According to the applicant, in May 2003 he was receiving some medication in connection with tuberculosis. From June to August 2003 he did not receive any treatment. From September to December 2003 the applicant’s treatment was resumed and a special diet was prescribed to him.
According to the medical documentation filed by the applicant, between March 2004 and November 2006 he was examined eight times by the tuberculotherapist. During that period of time the applicant 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). The applicant was prescribed some treatment, however he does not specify the nature of this treatment.
According to the medical documentation filed by the applicant, from 27 February 2007, while being in the Ladyzhynka Correctional Colony no. 39, the applicant has been receiving medical treatment and a special diet in connection with tuberculosis. The applicant does not indicate what the treatment consisted of. As of 22 April 2014 the applicant had post-TB residual changes in the upper part of the left lung (Category 5.1).
2. Conditions of the applicant’s detention in the Ladyzhynka Correctional Colony no. 39 (from 27 February 2007)
The applicant submits that he was forced to be in a bent position with his arms handcuffed behind his back during the cell’s regular searches, for outside walks, and while taking showers. The applicant provided the following description of the above mentioned events.
Before opening the cell doors the applicant, being in a bent position, put his arms behind his back and inserted them in a small window on the cell door to have them handcuffed. Then the guards 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 was kept in a bent position. Upon completion of the search the applicant was brought back to the cell and was allowed to unbend after the cell door was closed.
During the outside walks the applicant was taken out from the cell in a bent position with his arms handcuffed behind his back. The applicant and other inmates were forced to be in this position on the way to the walks and back. The inmates were escorted by a group of prison guards and dogs. Sometimes that procedure was followed with beating with rubber truncheons.
According to the prison schedule, the applicant was allowed a shower once a week. On the way to the shower facilities and back the applicant was forced to be in a bent position with his arms handcuffed behind his back. The water in the shower was cold from time to time and the shower itself lasted 5 minutes. The shower room was dark in since it was equipped only with a small window without artificial light inside. There was no heating in the shower room and in winter the temperature was approximately 7-8oC there.
The applicant was provided with 100 grams of soap per month for hygienic needs. He received the rest of hygienic products from his mother.
The applicant had to wash and dry his clothes in the cell which, as a result of that, was moist. 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.
B. Relevant domestic law and international material
The domestic and international material pertinent to the issue of medical treatment of tuberculosis is summarised in the judgments in the cases of Melnik v. Ukraine (no. 72286/01, §§ 47-51, 28 March 2006) and Kondratyev v. Ukraine, no. (5203/09, §§ 50-59, 15 December 2011).
In its 25th General Report the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1 January - 31 December 2015, the CPT underlined the following:
“71. ... in several countries, life-sentenced prisoners were systematically handcuffed and/or stripsearched whenever they left their cells. In some establishments, the prisoners concerned were additionally escorted by two officers and a guard dog during any movement outside their cell. Moreover, in a number of establishments visited, prisoners were subjected to anachronistic rules, the sole aim of which was to further punish and humiliate the prisoners concerned (e.g. prohibition to lie down on the bed during the day, obligation to recite the relevant article of the criminal code under which they had been convicted, each time an officer opened the cell door, obligation to wear a prison uniform of a distinct colour, etc.). In the CPT’s view, such practices clearly have a dehumanizing humiliating effect and are unacceptable ...
72. ... The CPT wishes to stress once again that there can be no justification for the systematic handcuffing or strip-searching of prisoners, all the more so when it is applied in an already secure environment. The Committee has also repeatedly stated that the use of dogs inside the detention area is unacceptable ...”
COMPLAINTS
The applicant complains under Article 3 of the Convention that he had contracted tuberculosis while in pre-trial detention and that he was not given access to appropriate medical assistance while detained.
The applicant also complains that the treatment he was subjected to from 21 February 2007 onwards in the Ladyzhynka Correctional Colony no. 39 was incompatible with the requirements of Article 3.
The applicant also complains under Article 13 of the Convention that he did not have an effective domestic remedy for his complaints under Article 3.
QUESTIONS TO THE PARTIES
1. What kind of medical treatment and assistance was provided to the applicant throughout his detention? Was such treatment sufficient with regards to the requirements of Article 3 of the Convention?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?
3. Were the conditions of the applicant’s detention in the Ladyzhynka Correctional Colony no. 39 as well as the treatment he was subjected to from 21 February 2007 onwards compatible with the requirements of Article 3?
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