Communicated on 20 November 2015
FIFTH SECTION
Application no. 31928/15
Viktoriya Leonidivna KONOVALCHUK
against Ukraine
lodged on 30 June 2015
STATEMENT OF FACTS
The applicant, Ms Viktoriya Leonidivna Konovalchuk, is a Ukrainian national, who was born in 1975 and lives in Kyiv. She is represented before the Court by Mr V.I. Melnychuk, a lawyer practising in Kyiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 7 September 2012 the applicant was arrested and on 14 September 2012 placed in the Odessa Pre-Trial Detention Centre (“Odessa SIZO”).
On 16 September 2013 the Odessa Malynovskyy District Court convicted the applicant of a number of drug-related offences and sentenced her to six years and six months’ imprisonment.
On an unspecified date the applicant appealed on points of law to the Higher Specialised Civil and Criminal Court (“the HSC”).
The applicant alleges that she started experiencing vaginal bleeding and pains in her lower stomach in August 2013 while at the Odessa SIZO. According to her, she complained of these symptoms and the lack of medical attention there but she was pressured to withdraw her complaints.
On 15 October 2014 the applicant was transferred to the Zbarazh Correctional Colony No. 63 (“the Zbarazh Colony”) to serve her sentence. The applicant claims that during her medical examination on admission to the Zbarazh Colony she complained of pains in the lower stomach and vaginal bleeding.
On 6 December 2014 the applicant was transferred to the hospital at the Lviv Pre-Trial Detention Centre (“the Lviv Prison Hospital”) for medical examination.
On 15 December 2014 the Lviv Prison Hospital issued its conclusion concerning the applicant: she was diagnosed with stage IV HIV, cervical cancer, and fibroma of the vocal cords. It was recommended that the applicant be hospitalised for normalisation of T-cell levels and then transferred to an oncology department for treatment.
On 3 March 2015 the applicant was admitted to the hospital at the Daryivska Correctional Colony No. 10 (“the Daryivska Prison Hospital”).
On 11 March 2015 the applicant was discharged from this hospital following an inpatient examination and a course of antiretroviral therapy. According to the medical certificate issued upon discharge, the applicant had been receiving antiretroviral drugs without interruption since December 2012. Her diagnosis was recorded as stage IV HIV with heavy immunosuppression, chronic hepatitis B and C, cervical cancer, ovarian cysts, fibroma of the vocal cords, and oral candidiasis. It was recommended the applicant: (i) continue with the course of antiretroviral therapy she had been receiving at the hospital; (ii) remain under medical supervision at the medical unit of the Zbarazh Colony; (iii) undergo tests for CD4 count levels in the very near future and subsequently once every three months, with a viral load test once every six months; (iv) take hepatoprotectors at the medical unit of the Zbarazh Colony; (v) be consulted concerning her reaction to treatment; (vi) undergo general clinical and biochemical tests once every three months. The applicant was referred to the oncology department of the Lviv Prison Hospital. According to the applicant, the prison authorities did not follow up on the above recommendations save the first.
On 22 April 2015 the applicant was transferred to the Kyiv Pre-Trial Detention Centre (“the Kyiv SIZO”) in order to be able to attend the HSC hearings in her case.
On 25 May 2015 the applicant’s representative lodged a request with the Kyiv Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) seeking the release on health grounds and a medical examination of the applicant by a specialised medical commission.
On 27 May 2015 the head of the medical unit of the Kyiv SIZO sent a letter to the Shevchenkivskyy Court describing the applicant’s diagnoses, noting that the applicant needed medical treatment in a specialised medical institution of the Ministry of Health, and stating that she required radiation therapy, which could not be provided in the Kyiv SIZO.
On 1 June 2015 the applicant underwent a blood test to determine her CD4 count and viral load.
On 15 June 2015 the applicant underwent an ultrasound examination of her pelvic area at the Kyiv City Medical Consultation and Diagnosis Centre. She was diagnosed with fibromyoma of the uterine cervix and a cyst on the right ovary.
On 17 June 2015 the applicant was examined by a gynaecologist who confirmed her diagnoses and recommended that she consult an oncologist and an infectious diseases specialist.
On 25 June 2015 the Shevchenkivskyy Court rejected the request for release on health grounds. The court stated that the applicant had failed to prove that she had a serious illness which would justify release.
On 1 July 2015 the Acting President of the Section to which the case had been allocated decided, upon the applicant’s request under Rule 39 of the Rules of Court, to indicate to the Government that the applicant should be presented urgently for medical examination by a specialist doctor and to secure immediately, by appropriate means, treatment of the applicant appropriate to her condition.
On 13 July 2015 the applicant was examined by a gynaecological oncologist. The doctor recommended that the applicant undergo radiation therapy at an institution specialising in gynaecological oncology. It was also recommended that the applicant have a further consultation with an infectious diseases specialist concerning her treatment in the light of her having cancer.
On 16 July 2015 the applicant was examined by an infectious diseases specialist. Her diagnosis was recorded as stage IV HIV, stage II cervical cancer, chronic, low level hepatitis C, and hepatomegaly. The specialist recommended a change in the antiretroviral therapy and noted that there were no contraindications for treatment of her cervical cancer.
According to a statement of the prison authorities submitted by the Government on 25 September 2015, the applicant refused to consent to changing her antiretroviral therapy and to undergoing the recommended radiation therapy on 27 and 30 July 2015 respectively.
On 31 July 2015 the Government informed the Court that it had been decided to transfer the applicant to the oncology department of the Lviv Prison Hospital once the HSC had completed the hearings in her criminal case. They stated that radiation therapy would be dangerous for the applicant in view of the severe immunological suppression she was suffering from. They went on to state that the applicant was being provided with hepatoprotective, vasoprotective, antifungal medicines and antiretroviral therapy.
According to the Government, on 7 August 2015 the applicant was examined by a panel of specialists at the Kyiv City Clinical Oncology Centre. Her diagnoses were confirmed and she was prescribed radiation therapy. It was noted that surgery and chemotherapy were inadvisable.
On 4 September 2015 the applicant wrote to the Court, alleging that the Government had failed to comply with the interim measure indicated by the Court. In particular, she alleged that she was still not receiving the recommended radiation therapy, nor any treatment for hepatitis or candidiasis. She also alleged that her transfer to the Lviv Prison Hospital would be conducted by rail in conditions incompatible with her state of health.
On 17 September 2015 the applicant was transferred to the Odessa SIZO for subsequent transfer to the Daryivska Prison Hospital for inpatient treatment.
On the same day the Court asked the Government to provide factual information concerning the reasons for which the applicant had not been treated with radiation therapy, the specific plans for her future treatment, the plans for her transfers to other establishments and under what conditions such transfers would take place.
According to the Government, on 23 September 2015 the applicant was examined by an infectious diseases specialist at the Daryivska Prison Hospital and a gynaecological oncologist at the Kherson Regional Oncology Clinic. The examination confirmed the previous diagnosis of HIV with severe immunosuppression, cancer, oral candidiasis and chronic hepatitis. The applicant was advised to undergo additional ultrasound examinations of the pelvic area, lymph nodes and abdominal cavity. Radiation treatment was also recommended.
On 25 September 2015 the Government informed the Court about the medical examinations the applicant had undergone during the period following the Court’s decision to indicate the interim measure. They indicated that the applicant would soon be transferred under guard to the oncology department of the Lviv Prison Hospital by rail.
COMPLAINTS
The applicant complains under Article 3 of the Convention that she was not provided with adequate medical care in detention. She also complains that the conditions of her transport were not compatible with her state of health. The applicant further complains that the Government unjustifiably delayed complying with the interim measure indicated by the Court in her case.
QUESTIONS TO THE PARTIES
1. Was medical treatment and assistance provided to the applicant in detention in compliance with the requirements of Article 3 of the Convention?
2. Were the conditions of the applicant’s transport between her places of detention and treatment compatible with Article 3 of the Convention?
3. Having regard to the measures taken in response to the Court’s decision to indicate, on 1 July 2015, an interim measure under Rule 39 of the Rules of Court, was there a hindrance by the State in the present case with the effective exercise of the applicant’s right of application, ensured by Article 34 of the Convention?
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