FIFTH SECTION
Application no. 35761/07
Aleksandr Aleksandrovich LUKASHOV
against Ukraine
lodged on 26 July 2007
STATEMENT OF FACTS
The applicant, Mr Aleksandr Aleksandrovich Lukashov, is a Ukrainian national, who was born in 1962 and has his permanent address in Troyany, Zaporizhzhya Region.
The circumstances of the case
1. The first set of criminal proceedings against the applicant, his alleged ill-treatment in police custody and ensuing investigation
On 23 October 2001 the applicant was arrested in the Zaporizhzhya Region on suspicion of having committed several robberies and other crimes in association with several other individuals.
On 25 October 2001 the applicant was examined in the Zaporizhzhya City Hospital and diagnosed as suffering from a chest contusion and several abrasions on his head.
On an unspecified date after the pre-trial investigation had been completed the applicant complained to the Zaporizhzhya Regional Prosecutor’s Office that he had been ill-treated by the police with a view to extorting self-incriminating statements.
On 1 November 2002 the Tokmak Court convicted the applicant of several counts of robbery and other crimes and sentenced him to thirteen years’ imprisonment.
On 11 December 2002 the Zaporizhzhya Regional Prosecutor’s Office notified the applicant that, having carried out an inquiry into his allegations of ill-treatment, they had concluded that his injuries resulted from application of proportionate force by the police to effect his arrest. There was therefore no call for instituting criminal proceedings into ill-treatment allegations. It is unclear whether the applicant challenged that response in any way until 2007.
On 1 September 2003 and 9 November 2004 the Zaporizhzhya Regional Court of Appeal and the Supreme Court of Ukraine respectively rejected the applicant’s appeals against his conviction. Both courts dismissed the applicant’s allegations of ill-treatment by the police, referring to the prosecutor’s office’s findings that these were unsubstantiated.
On 12 March 2007 the applicant re-lodged his ill-treatment complaint with the Zaporizhzhya Regional Prosecutor’s Office. He alleged, in particular, that he had never resisted his arrest and that the injuries had been inflicted in the premises of the police office.
On 6 April 2007 an investigator with the prosecutor’s office refused to institute criminal proceedings into the applicant’s allegations of ill‑treatment.
On 9 July 2007 the supervising prosecutor of the Zaporizhzhya Regional Prosecutor’s Office quashed this decision and ordered further inquiry.
On 31 August 2007 the prosecutor’s office took a new decision, refusing to institute criminal proceedings into the applicant’s ill-treatment complaints having found no evidence that the applicant’s injuries had been inflicted as a result of ill-treatment.
2. The second set of criminal proceedings against the applicant and his purported ill-treatment in the Slovyanoserbsk and Starobilsk detention facilities
On 28 October 2003 the applicant arrived in the Slovyanoserbsk Colony no. 60 to serve his sentence.
On 2 November 2003 the applicant and five of his inmates cut their veins and inserted metal objects into their abdomens to protest against having been allegedly beaten by the wardens upon their arrival in the penitentiary.
On the same date the applicant was operated with a view to extracting the foreign body and examined by a psychiatrist, who diagnosed him with “emotionally unstable personality disorder with demonstrative suicidal reactions.”
On 30 August 2004 the Lugansk Regional Prosecutor’s Office refused to institute criminal proceedings into the applicant’s and his co-detainees’ injuries. It found that physical force had in fact been applied to the applicant on 30 October 2003, however, its application was justified by his resistance to a lawful search and the force had not exceeded that which was strictly necessary to restrain the applicant. The applicant lodged no formal appeals against this decision.
In September 2004 and March 2005 the applicant was again hospitalised with a view to extraction of foreign bodies inserted by him into his abdomen. It is not clear whether the applicant lodged any complaints about these incidents.
On an unspecified date criminal proceedings were instituted against the applicant on charges of malicious insubordination to the lawful orders of the administration of a penitentiary institution. In particular, the applicant was accused of repeated refusals to do the cleaning chores, unauthorised communication with inmates from a different cell and some other types of insubordination.
Pending the investigation and trial, the applicant was temporarily transferred to the Slovyanoserbsk Temporary Detention Centre (ITT) and then to the Starobilsk Remand Centre (SIZO). According to the applicant, the conditions of detention in both of these facilities were intolerable.
On 14 May 2005, while detained in the Slovyanoserbsk ITT, the applicant and some fourteen other detainees caused self-injuries to protest against the conditions of their detention and were hospitalised to receive medical assistance.
On 6 May 2005 the Ministry of Interior, having investigated the incident, concluded that this mass self-injury became possible on account of poor management of the facility and supervision of the detainees and ordered some improvements.
On 22 July 2005 the Slovyanoserbsk Court convicted the applicant of malicious insubordination to the lawful demands of the colony administration and sentenced him to three years’ imprisonment for this offence.
On an unspecified day the applicant complained to the Slovyanoserbsk Prosecutor’s Office that on 10 August 2005 he had been beaten by the convoy officers while in transit from one temporary detention facility to another.
On 10 September 2005 the Slovyanoserbsk Prosecutor’s Office refused to institute criminal proceedings into the applicant’s allegations, having found that this complaint was wholly unsubstantiated.
On 5 December 2006 the Lugansk Regional Court of Appeal upheld the applicant’s conviction of 22 July 2005.
In March 2007 the applicant was transferred to the Zhytomyr Prison no. 8 to continue serving his sentence.
On 30 March 2007 the Supreme Court of Ukraine refused to consider the applicant’s cassation appeal against his conviction of 22 July 2005, having found that he had failed to include properly certified copies of the court decisions appealed against. Subsequently the applicant unsuccessfully attempted to challenge this ruling and to have the proceedings re-opened.
On an unspecified date the applicant complained to the prosecutor’s office that he had been verbally and physically ill-treated by the Kharkiv SIZO staff between 19 and 23 March 2007, while in transit to the new colony. On 8 June 2007 the Kharkiv Regional Prosecutor’s Office refused to institute criminal proceedings into this complaint having found it wholly unsubstantiated.
3. Alleged inadequacy of medical assistance between April and December 2007
In April 2007 the applicant was examined by medical professionals of the Zhytomyr Municipal Hospital and placed under therapeutic supervision on account of hypertension, obesity, chronic gastritis, peritoneal commissures, osteochondrosis and deforming osteo-arthrosis of the knee joints. Treatment and possibly surgery in a specialised traumatology clinic were also recommended.
On several occasions the Zhytomyr Prison no. 8 administration requested the State Department of Punishments to organise the applicant’s hospitalisation in a specialised clinic, however, no positive response was received.
On various occasions the applicant complained to various authorities about procrastination in organising his specialised treatment.
In June 2007 the applicant was transported for treatment to the Khmelnitsky endocrinology department, which, according to him, was by mistake.
In October and November 2007 the State Department of Punishments informed the applicant that he could undergo treatment in the traumatology department of the Zhytomyr Municipal Hospital. The applicant rejected these proposals, referring to the lack of facilities in the Zhytomyr Prison to organise his post-surgery therapeutic supervision.
On an unspecified date L.K., a pensioner from Pervomaysk, was authorised by the applicant to represent his interests before various authorities and lodged a number of complaints on his behalf.
4. The applicant’s stay in the Donetsk Colony no. 124 Hospital between 17 December 2007 and 11 February 2008 and investigation into his allegations of ill-treatment
(a) Physical conditions and medical assistance
On 17 December 2007 the applicant was hospitalised in the Donetsk Colony no. 124 Hospital with acute lumbago. He remained in the hospital until 11 February 2008.
According to the applicant, his treatment was unsatisfactory and the living conditions in the hospital caused him extra suffering. In particular, room no. 22, in which the applicant was initially placed, allowed very little space per patient. It was equipped with six bunk-beds. The applicant, who was assigned the upper bunk, had serious difficulties climbing up and down his bunk on account of his medical condition. The hospital facilities were held in anti-sanitary state and the premises were infested with rodents, bedbugs and flees. The belongings of the patients were not disinfected upon their arrival. The hospital had no outside courtyards for fresh-air exercise and most of the time the patients were locked in their rooms. Nutrition was very poor. In particular, the patients were fed with low-quality cereal most of the time, while such products as butter, meat, eggs and fresh produce were available irregularly or against illegal cash payments.
On various occasions the applicant and some other patients complained to the hospital administration and to various outside authorities about the conditions of their treatment.
(b) The incident of 24 January 2008 and ensuing investigation
On 24 January 2008 two prison officers reprimanded the applicant for his complaints and beat him with a truncheon, inflicting numerous bruises on various parts of the body.
On the same date the applicant, Y.K and M.Sh., his roommates, inserted metal cords from the bed mesh in their abdomens to protest against the way they were treated in the hospital.
On 25 January 2008 the applicant met with S. S., a lawyer, and showed him his injuries. Upon this visit, S. S. gave a press-conference to journalists, alleging that three detainees had attempted to kill themselves in protest against unbearable conditions of treatment. The journalists were not allowed to meet up with the applicant purportedly because of his ill-health.
On the same date the material was published in several internet media and on several television channels.
Following the incident, on 28 January 2008 the State Sanitary Service and the State Living Conditions authority inspected the hospital. They concluded that the allegations by the applicant and his roommates were unsubstantiated. In particular, there were no traces of rodents, flees, or other pests; the hospital staff disinfected the patients’ belongings upon their arrival at the hospital and carried out routine disinfection measures on a regular basis; patient rooms were equipped with individual sleeping places and were in a satisfactory sanitary state. Patients received three meals a day, the quality of which was regularly controlled by the staff, who kept a relevant record. The hospital was supplied with vegetables, which had necessary quality certificates.
On the same date the applicant turned to the medical staff seeking help for the self-inflicted abdominal injury and was operated on with a view to extracting the metal cord.
On the same date the applicant was also examined by G., a medical expert, who certified that he had no other bodily injuries except the self-inflicted abdominal injury. Subsequently the applicant unsuccessfully attempted to institute criminal proceedings against the expert, alleging that he had purposefully concealed that the applicant had numerous bruises resulting from his beating on 24 January 2008.
On 1 February 2008 the Donetsk Regional Bureau of Forensic Assessment examined the applicant’s, Y.K.’s and M.Sh.’s medical records and concluded that their medical treatment was appropriate.
On 4 February 2008 the Donetsk Regional Prosecutor’s Office decided not to institute criminal proceedings into the incident of 24 January 2008, referring to the findings of the authorities responsible for forensic assessments and sanitary and living conditions. It also noted that all 165 patients in the hospital in the material time had been questioned and had lodged no complaints about either their living conditions or treatment. Some of them also said that the applicant and his roommates had injured themselves to attract attention of the authorities and to make an impression on the patients.
On 29 February 2008 the Donetsk Regional Prosecutor’s Office acknowledged that the hospital had no courtyards for fresh-air exercise in breach of applicable standards and that the available living space per patient was about 3.6 square meters, which was less than the applicable standard. Space was lacking, in particular, in room no. 22, where the applicant had been treated. This room was equipped with bunk beds and accommodated six patients, while there should not have been more than five. The prosecutor’s office further instructed the hospital authorities to address these breaches of applicable standards.
The applicant, represented by L.K., appealed against the decision of 4 February 2008 before the Voroshylivskyy District Court of Donetsk.
In summer 2008 L.K. also notified the court that she had been approached by a stranger, who had insisted that she should stop complaining about the applicant’s ill-treatment, unless she wanted her family to get in trouble. The court referred this complaint to the Pervomaysk Prosecutor’s Office, which refused to institute formal proceedings as the incident had no consequences and based on scarce information provided by L.K., the purported perpetrator was not identifiable.
On a number of occasions (i.e. 30 May 2008, 15 January 2009, 11 November 2009 and 17 March 2010) the Voroshylivskyy District Court of Donetsk upheld the decision of 4 February 2008 not to institute criminal proceedings into the incident of 24 January 2008.
The court’s decisions were subsequently quashed by the Donetsk Regional Court of Appeal, primarily referring to various procedural shortcomings in the examination of the applicant’s submissions.
On 2 September 2010 in the course of the new round of proceedings the Voroshylivskyy District Court quashed the decision of 4 February 2008 and instructed the prosecutor’s office to carry out a further inquiry.
5. The applicant’s escort from the Donetsk Colony no. 124 Hospital to the Zhytomyr Prison no. 8 between 11 February and 20 February 2008 and investigation into the incident of 11 February 2008
According to the applicant, at about 15:00 on 11 February 2008, when invited for an x-ray in the Donetsk Colony no. 124 Hospital, he was suddenly knocked to the ground in the corridor by several prison officers, who beat him on various parts of his body, handcuffed him and threw him into a convoy car to be transported out of the hospital. The applicant’s warm clothes and some personal belongings were brought into the car only some two hours later. The applicant became very cold, as it was winter outside, and some of his personal belongings were never recovered. On the same day the applicant was escorted to the Donetsk SIZO as a transit point and then to the Bucha Colony no. 85 Hospital.
On an unspecified date the applicant inserted a metal cord in his abdomen to protest against his ill-treatment.
Having arrived in the Bucha Hospital on 14 February 2008, the applicant was diagnosed as suffering from a self-inflicted abdominal wound with a foreign body inside and deforming osteo-arthrosis of the knee joints and was found to have no other injuries.
On 15 February 2008 the applicant was operated upon with a view to extract the foreign body from his abdomen.
On 20 February 2008 the applicant was escorted to the Zhytomyr Prison no. 8 to continue serving his sentence.
On unspecified dates the applicant complained to the prosecutor’s office about the incident of 11 February 2008 and alleged that the convoy officers had not organised proper medical assistance to him during transit.
On 11 March 2008 the Donetsk Regional Prosecutor’s Office refused to institute criminal proceedings into the applicant’s new complaints. It found that there was no evidence of the applicant’s beating on 11 February 2008. It acknowledged that at 14:15 on that date handcuffs were applied to the applicant and found that this measure of restraint was lawful. In particular, it was applied in response to his threats that if he could not stay in the hospital, he would injure himself, as the officers needed to ensure his transportation to a penitentiary facility following the completion of the treatment course. It also found that as soon as the applicant had calmed down after having been placed in the car, the handcuffs had been removed.
6. The applicant’s detention in the Zhytomyr Prison no. 8 between February and June 2008 and investigation into the incidents of 21 and 28 February 2008
(a) The incidents of 21 and 28 February 2008 and ensuing investigation
On 21 February 2008 the applicant arrived in Zhytomyr Prison no. 8.
According to the applicant, upon his arrival he was searched and beaten by two officers of the colony, who threatened that he would be killed if he continued his practice of complaining about the conditions of detention and breaches of the detainees’ rights. After this the applicant was placed in a so‑called “pressure-hut” (“прес-хата” – a cell where, according to the applicant, the detainees illicitly contracted by the prison authorities harassed rebellious inmates to induce their obedience). These detainees engaged in a groundless conflict with the applicant and beat him.
On the same day the applicant was found responsible for the conflict and punished by ten-day confinement in a disciplinary cell.
On 28 February 2009 the applicant was released from the disciplinary cell and returned to the “pressure-hut”, where he was immediately beaten by his inmates.
On the same day the Zhytomyr Prison Doctor recorded that the applicant suffered from an abrasion on the forehead and contusion in the cranial area.
The applicant was found responsible for causing the conflict and placed in solitary confinement for three months.
On 29 February 2008 the acting colony governor refused to institute criminal proceedings into the circumstances leading to the applicant’s injuries, having found that the applicant himself was at fault for them. In particular, he had actively resisted his search on 21 February 2008, waved his medical cane in front of himself attempting to hit a warden, swore, and eventually had deliberately hit himself on the head with his cane. He also noted that a saw blade had been seized from the applicant in the course of the search.
On 21 March 2008 the Zhytomyr Regional Prosecutor’s Office also refused to institute criminal proceedings into the applicant’s complaints about the February incidents.
On an unspecified date this decision was revoked by the supervising prosecutor and a further inquiry was ordered.
On 19 May 2008 the prosecutor’s office took a fresh decision not to institute criminal proceedings into the February incidents.
On 22 October 2008 the Korolyovskyy District Court of Zhytomyr upheld the refusal of 19 May 2008. It noted, in particular, that four applicant’s inmates implicated in the incidents had confirmed that it was the applicant, who had caused the conflicts.
The applicant represented by L.K. appealed against this decision.
On 12 January and 17 November 2009 the Zhytomyr Court of Appeal and the Supreme Court of Ukraine respectively rejected the applicant’s appeals.
(b) Physical conditions and medical assistance
According to the applicant, the conditions of his detention in the Zhytomyr Prison no. 8 between February and June 2008 were unsatisfactory.
On numerous occasions the applicant in person and with L.K.’s help requested his transfer to another prison, alleging that the Zhytomyr Prison staff were biased against him, that there was a threat to his life, that he was not receiving proper medical assistance and that there was censorship of his correspondence. His requests were refused as lacking basis.
On 8 May 2008 the State Department of Punishments informed L.K. that the applicant was under regular supervision of the medical professionals. In particular, he was examined by a paramedic, who measured his temperature and blood pressure daily. On as needed basis, the applicant was also examined by a doctor, who confirmed that there was no need for urgent treatment. As regards routine periodic treatment for his chronic condition, the deforming osteo-arthrosis of the knee joints, a hospitalisation request by the colony administration was pending in the State Department of Punishment. There was no undue interference with the applicant’s correspondence.
On several occasions the applicant was offered a course of therapy in the Zhytomyr Region facilities, which he categorically refused, alleging that the facilities were inappropriate and that he needed special treatment in a specialised clinic.
In June 2008 the applicant was transferred to the Lugansk SIZO Hospital for routine treatment for osteo-arthrosis.
7. The applicant’s stay in the Lugansk SIZO Hospital between 15 June and 15 July 2008 and investigation into his allegations of ill‑treatment
On 15 June 2008 the applicant arrived in the Lugansk SIZO Hospital for treatment on account of deforming osteo-arthrosis of the knee joints.
According to him, he was met by the SIZO staff in an inhuman and degrading manner. In particular, upon his descent from the vehicle in Lugansk, several masked guards, while shouting degrading remarks, handcuffed and beat the applicant, then pushed and rushed him forward, paying no attention that he was walking with the support of a medical cane. Upon arrival in the SIZO, the applicant was subjected to a thorough search, including a strip search and an anal search, which felt degrading to him. As the applicant verbally protested against such treatment, he was dragged into the disciplinary cell. The applicant remained in handcuffs for more than twenty-four hours and had to sleep on a concrete floor, as the bed, which was fastened to the wall during the daytime, was not unfastened for him.
Starting from 17 June 2008 L.K. started contacting the Lugansk SIZO staff to find out about the applicant’s state of health, but she was denied any information.
On 18 June 2008 L.K. arrived in the SIZO and was denied access to the applicant. Visitors of other detainees inquired these detainees about the applicant upon L.K.’s request, and reported back that a new arrival had been seen beaten by the guards in the courtyard and that it might have been the applicant.
On 18 June 2008 L.K. engaged advocate Sh. to visit the applicant in the SIZO. He was denied access to the applicant on that date.
On the same date L.K. complained to the Lugansk Regional Prosecutor’s Office about the applicant’s purported ill-treatment and demanded that urgent access of the advocate to the applicant be organised.
On 19 June 2008 the applicant was released from the disciplinary cell and placed in a room with no other prisoners. A personal guard was assigned to supervise him. The applicant’s requests to record the injuries inflicted on him upon his arrival were refused.
On 23 June 2008 the applicant had a meeting with Sh., who informed L.K. that the applicant had bruises on various parts of his body and swollen wrists from prolonged application of handcuffs. Following this conversation, L.K. lodged new complaints with various authorities.
On 24 June 2008 the applicant was examined by the chief of the SIZO Hospital surgery department and found to have inserted a foreign body in his abdomen. On the same day a seven-centimetre metal wire was surgically removed from the applicant’s abdomen.
On 2 July 2008 the applicant had a meeting with L.K. and complained to her that he had been treated in an inhuman and degrading manner. In particular, he was arbitrarily classified as a detainee needing special “prophylactic” supervision and was held under constant surveillance in solitary confinement. He was often denied water for drinking and washing, although it was very hot outside; his medical treatment, which consisted mostly of some injections, was not working. His state of health was deteriorating. His knees were swollen, and one medical cane was no longer sufficient for him to march with. Instead he started walking with two crutches.
Following this visit, L.K. lodged further complaints with the State Department of Punishments and the prosecutor’s office.
On 4 July 2008 the SIZO staff informed L.K. in response to her complaints that there was no need to perform a surgery on the applicant’s knees and that his osteo-arthrosis needed to be treated conservatively. L.K. was further advised that, should the applicant disagree with the treatment proposals by the hospital staff, he could invite any outside medical specialist for a consultation and promised that the SIZO staff would organise access of such a specialist to the applicant.
On 7 July 2008 the applicant was consulted free of charge by a professor (доцент) of the orthopaedics and traumatology department of the Lugansk State Medical University, who approved of the treatment strategy taken by the team of the Lugansk SIZO Hospital doctors.
On 13 July 2008 the applicant again was beaten by several masked SIZO officers, who ordered him to stop complaining about the conditions of his detention and treatment.
On the same date the applicant inserted a metal object in his abdomen to protest against his purported ill-treatment. According to some records, this object was a spoon handle, while according to some others it was a metal wire.
On the same date the applicant was examined by the SIZO doctors, who recorded his bruises and the abdominal wound, but provided no treatment.
On 15 July 2008 the applicant was handcuffed and placed under the authority of the convoy officers from the Department of the Interior for a transfer back to the Zhytomyr Prison no. 8.
On 22 July 2008 the Lugansk Regional Prosecutor’s Office informed L.K. in a letter that they had not discovered any breaches of the applicant’s rights during his stay in the Lugansk SIZO Hospital and that his complaints about the beatings were wholly unsubstantiated. The applicant, represented by L.K., appealed against this response to the Leninskyy District Court of Lugansk.
In summer 2009 the applicant lodged an action with the Lugansk District Administrative Court, seeking to oblige the Lugansk Regional Prosecutor’s Office to take action and investigate his complaints about ill-treatment in the Lugansk SIZO Hospital.
On 24 September 2009 the administrative court refused to consider this action having found that it fell outside its jurisdiction and should be considered under the criminal procedure rules. On 3 December 2009 and 8 September 2010 the Donetsk Regional Administrative Court of Appeal and the Higher Administrative Court respectively upheld this ruling.
On an unspecified date the applicant also appealed against the Lugansk Regional Prosecutor’s Office’s response of 22 July 2008 under the rules of criminal procedure.
On 15 March 2010 the Leninskyy District Court of Lugansk refused to consider this appeal, having found that the prosecutor’s office’s response given in the form of a letter, rather than by way of a formal decision, could not be a subject of an appeal.
On 26 May and 23 September 2010 the Lugansk Court of Appeal and the Supreme Court of Ukraine respectively upheld this ruling.
8. Alleged inadequacy of medical assistance on account of abdominal injury of 13 July 2008
On 16 July 2008 the convoy officers, charged with escorting the applicant from the Lugansk SIZO Hospital to the Zhytomyr Prison no. 8, recorded that the applicant had several healing bruises and an abdominal wound, which, according to him, had been self-inflicted by way of inserting a twelve-centimetre metal cord in his abdomen.
On 16 July 2008 the applicant arrived in the Kharkiv SIZO, where he was x-rayed and diagnosed as suffering from a wound with a foreign body inside it.
On 24 July 2008 the applicant was transferred to the Kyiv SIZO by way of transit. En route the applicant developed a high fever. Upon his arrival in the Kyiv SIZO, the applicant was attended by an ambulance team. It established that there was an inflammation around his wound, which could result in peritonitis unless the applicant was operated upon. Absent permission for a surgery in a civilian hospital, the applicant was placed in the SIZO’s medical unit.
On or around the same date the applicant addressed a letter to the State Department of Punishments requesting an operation in the Bucha Colony no. 85 Hospital. This request was ignored.
On various dates the applicant and L.K. unsuccessfully attempted to institute criminal proceedings against the convoy officers and the Kyiv SIZO administration on account of their failure to organise proper medical assistance to the applicant. Their requests were rejected as at the time-period in question there was no urgent need to organise surgery and that appropriate conservative medical assistance had been provided to him.
On 26 August 2008, upon his arrival in the Zhytomyr Prison no. 8, the applicant was consulted by a civilian surgeon, who recommended that the applicant be urgently operated upon to extract the foreign body as otherwise there was a danger of peritonitis.
On 28 August 2008 the applicant was transferred to the Bucha Colony no. 85 Hospital.
On 2 September 2008 the applicant was examined by a medical commission of the hospital. The commission assessed the applicant’s state of health as satisfactory and found that there was no urgent need for his surgery.
On 4 September 2008 the applicant, represented by L.K., complained to the Irpin Prosecutor’s Office that the Bucha Hospital staff had deliberately misdiagnosed him and denied him urgently needed surgery to extract a foreign body from his abdomen. Having questioned the doctors of the hospital, the prosecutor’s office rejected this complaint as unsubstantiated.
On 5 September 2008 the applicant was consulted by a doctor from the private medical clinic “Boris”, who diagnosed him as suffering from an inflammation around a foreign body in his abdomen.
On 7 September 2008 the applicant was transferred back to the Zhytomyr Prison no. 8 as not needing a surgical intervention.
According to the applicant, on 9 September 2008 a fistula opened in his abdomen and significant amount of puss was released from the wound.
On 15 September 2009 the State Department of Punishments responded to L.K. in a letter that her complaint about inadequate treatment in the Bucha Hospital was without basis.
The applicant, represented by L.K., reiterated his complaint before the Kyiv Regional Prosecutor’s Office.
On 24 September 2008 the applicant was transported to the Zhytomyr City Hospital on account of further aggravation of his state and was diagnosed as having a foreign body in his abdomen and an inflammation around it.
On 25 September 2008 the Kyiv Regional Prosecutor’s Office refused to institute criminal proceedings into the applicant’s complaints about the Bucha Hospital staff, having found that there was no reason to question the doctors’ opinion concerning the applicant’s surgery. They also noted that during his stay in the hospital the applicant had harassed the hospital staff by advancing various groundless threats and that he had been officially diagnosed as suffering from a querulous personality disorder of the expansive type with explosive and demonstrative reactions of protest by way of self-injury.
The applicant appealed, alleging that he had been deliberately misdiagnosed under the authority of the chief doctor N. and the surgeon V., which led to the aggravation of his state of health.
On 24 October 2008 the applicant returned in the Bucha Colony no. 85 Hospital and had an operation to extract the metal object from his abdomen. According to him, following the surgery, a tumour formed around the surgical scar as a result of prolonged failure to provide him with medical assistance.
On 9 February 2009 the Brovary Court upheld the applicant’s appeal against the prosecutor’s office’s decision of 25 September 2008. It found that the applicant’s medical records contained inconsistent information. In particular, according to the results of the examination on 2 September 2008, there was no foreign body in the applicant’s abdomen. At the same time, according to the findings of the “Boris” hospital doctor and some later examinations by the Bucha hospital personnel, there was a likelihood that the foreign body was present. The court also took note that on 24 October 2008 the applicant had eventually been operated upon in the same hospital and the foreign body from his abdomen had been removed. The court therefore instructed the prosecutor’s office to question the applicant and to investigate the discrepancies in the medical records.
On 19 February 2009 an investigator with the Kyiv Regional Prosecutor’s Office took a fresh decision not to institute criminal proceedings. He noted that many of the medical staff were unavailable for the questioning and that the hospital had not responded to his inquiry concerning the specifics of the applicant’s surgery in October 2008. However, as appeared from the applicant’s records, he had received conservative treatment with antibiotics and sedative drugs while in the hospital, and there was no basis for questioning the doctors’ treatment strategy in the applicant’s case.
On 7 August 2009 the supervising officer with the Kyiv Regional Prosecutor’s Office quashed this decision.
On 19 August 2009 a new decision not to institute criminal proceedings was taken on essentially the same grounds as before.
On 2 December 2009 the Brovary Court rejected the applicant’s appeal against this decision.
On 26 January 2010 the Kyiv Regional Court of Appeal quashed this ruling. It noted that neither the prosecutor’s office’s refusal, nor the Brovary Court’s rulings were well-founded and reiterated that a thorough study of the medical file was necessary to find out why there were discrepancies in the applicant’s diagnosis.
On 5 February 2010 the prosecutor’s office took a fresh decision not to institute criminal proceedings.
On 11 August 2010 the Brovary Court quashed this decision on the applicant’s appeal and ordered further inquiry.
9. The applicant’s detention in Zhytomyr Prison no. 8 between November 2008 and April 2009 and investigation into the incidents of 8-11 November 2008
(a) Incidents of 8-11 November 2008 and ensuing investigation
On 8 November 2008 the applicant arrived in Zhytomyr Prison from the Bucha Colony no. 85 Hospital following his surgery and post-operative treatment.
According to the applicant, immediately upon his arrival he was searched in an inhuman and degrading manner. In particular, the officers stripped him of his clothes and insisted that he did sit-ups (apparently to push down objects hidden in the anal orifice, if any). The applicant protested, referring to his recent surgical operation and problems with his knee joints. Following the search, the applicant was ordered to follow the guards to cell no. 101. The applicant protested, alleging that according to applicable law he had to be held in quarantine for fourteen days following his arrival from a different penitentiary facility and that cell no. 101 was “the press-hut”. In response to his protests, the guards beat him severely and dragged him into cell no. 101.
Upon the applicant’s placement in the cell, two inmates, who were there, started harassing him verbally, promising to “teach him” how to stop complaining. Eventually they started pushing the applicant around, avoiding, however, application of stronger force and having regard that the applicant had already been in a very poor condition.
Having noticed the fracas, the guards interfered and the applicant was placed in a disciplinary cell.
On 9 November 2008 the applicant was returned to cell no. 101, which accommodated two different inmates by that time. When these inmates started harassing the applicant, he took a staple from a notebook, and attempted to cut his veins.
Having found the applicant responsible for causing a conflict with the inmates, the colony authorities put him in a disciplinary cell for another day.
On 10 November 2008 the applicant was ordered to return to cell no. 101, against which order he actively protested.
At an unspecified time on that date the applicant inserted a metal object in his abdomen.
On the same date the applicant was examined by a commission from the colony medical unit and found to have suffered from numerous abrasions, bruises, a cut wound on the elbow and a cut wound on the abdomen. The applicant was x-rayed and found to have a metal-density foreign body in his abdominal cavity measuring about six centimetres. On the same date the applicant refused an operation to extract this body in the colony medical unit and demanded to be placed in a specialised clinic.
On 11 November 2008 the chief of the colony medical unit confirmed that the applicant’s injuries were compatible with his detention in a disciplinary cell.
On 12 November 2008 the applicant was examined by a forensic expert, who recorded several bruises, an abdominal wound, abrasions and a cut in the elbow of his arm.
On the same date the applicant was placed in a disciplinary cell.
On 19 November 2008 the applicant again was examined by a commission including an inspector from the health division of the State Department of Punishments and officers from the colony medical unit. The commission found that the applicant was in need of a surgery to extract a foreign body from his abdomen, however, there was no particular urgency in performing this surgery. On an unspecified date the applicant was operated upon to extract the foreign body.
On 20 November 2008 the acting colony governor refused to institute criminal proceedings into the applicant’s injuries, having found that the applicant had been the initiator of the conflicts and that his injuries had been primarily self-inflicted. In particular, the cut to his elbow had been inflicted by him with a staple from a notebook. He also noted that the applicant had probably created the conflicts in order to obtain a transfer to another prison.
On 25 November 2008 the applicant was released from the disciplinary cell and ordered to return to cell no. 101. He refused to enter this cell, attempted to hit the colony officer escorting him with his crutch and threatened him with physical violence.
On 26 November 2008 the applicant was placed in solitary confinement for three months by way of disciplinary punishment for having caused the incident of 25 November 2008.
On 22 December 2008 the Zhytomyr Regional Prosecutor’s Office revoked the decision of 20 November 2008 not to institute criminal proceedings into the incidents of 8-11 November 2008 and ordered a further inquiry.
On 31 December 2008 a fresh refusal to institute criminal proceedings was issued. The applicant, represented by L.K., appealed against this decision to the Korolyovskyy District Court of Zhytomyr.
On 22 April 2009 the Korolyovskyy District Court of Zhytomyr rejected the applicant’s appeal.
On 26 February 2009 the applicant’s term in solitary confinement was extended purportedly to ensure his own safety.
On 18 June 2009 the Zhytomyr Regional Court of Appeal upheld the Korolyovskyy District Court’s decision of 22 April 2009.
On 11 May 2010 the Supreme Court of Ukraine allowed the applicant’s cassation appeal against the above court rulings and remitted the case for a fresh consideration by the first-instance court. It noted, in particular, that the conclusion that the applicant’s injuries had been self-inflicted was insufficiently substantiated.
On 9 July 2010 the Korolyovskyy District Court of Zhytomyr quashed the decision of 31 December 2008. It instructed the prosecutors’ office to verify whether all of the applicant’s injuries could have been self-inflicted.
On 27 July 2010 the Zhytomyr Regional Court of Appeal upheld this decision.
(b) Physical conditions of the applicant’s detention
According to the applicant, the cells in which he was held during November 2008 – April 2009 were unsuitable for living. They were poorly heated, if at all, and the temperature in them was freezing. They were also infested with rats. At night a bed was unfastened from the wall for the applicant, and rats jumped all over him lying on the bed. During the daytime the bed was fastened to the wall and the applicant was not allowed to use it in spite of his state of health. The applicant continued fighting rats on the concrete floor. No medical assistance was provided to the applicant, although he urgently needed it.
On numerous occasions the applicant in person and through L.K. complained to various authorities about the lack of medical assistance and the material conditions of his detention.
On 16 February and 18 March 2009 the State Department of Punishments informed L.K. that the applicant’s state of health was satisfactory and that he was receiving outpatient treatment for his injuries and chronic conditions. They also denied the applicant’s allegations concerning unsuitable material conditions of his detention, noting, in particular, that the living quarters were properly heated; anti-rodent measures were taken on a monthly basis by the Zhytomyr Sanitary authority the premises were disinfected with a chlorine solution once a week.
10. The applicant’s solitary confinement in the Yenakiyeve Colony no. 52 from April 2009 until November 2010
On 4 April 2009 the applicant was transferred to the Yenakiyeve Colony no. 52 to continue serving his sentence.
On 30 April 2009 the applicant addressed a written request to the colony governor to ensure his safety by way of holding him in solitary confinement. According to the applicant, this request was made out by him under pressure of the colony governor, as in fact he had no reasons to fear for his safety in the new environment.
According to the applicant, his solitary confinement in fact caused him severe suffering, as he felt very ill and needed human support. Moreover, he remained classified as a detainee under the “prophylactic supervision” regime and was under constant watch by the guards, which made him feel as if he were abnormal.
In August 2009 the Yenakiyeve Colony Administrative Board refused to relax the applicant’s detention regime on the ground that he had a recent disciplinary record from the Zhytomyr Prison no. 8.
On various occasions L.K. lodged complaints with the authorities seeking to have the applicant released from solitary confinement and to review his “prophylactic supervision” status.
On 28 August 2009 the Yenakiyeve Colony administration informed L.K. that the applicant remained in solitary confinement pursuant to his own request.
11. The incidents of 15 and 16 November 2010 and ensuing investigation
In August 2010 the colony administrative board reviewed the applicant’s case and allowed relaxation of his detention regime. However, until October 2010 no corresponding actions were taken and the applicant remained locked alone in his cell. According to him, the administration kept urging him to request extension of his solitary confinement “for his own benefit”. The applicant refused and started complaining to various authorities about corrupt practices, in which R., the acting colony governor, was purportedly engaging.
On 15 November 2010 R. visited the applicant and demanded that he stopped complaining or there was a risk that he would be murdered. Following his visit, the applicant, fearing for his life, wounded himself and informed the guard on duty that he needed medical assistance.
On the same date the applicant was hospitalised first in the Yenakiyeve Municipal Hospital and then to the Donetsk Colony no. 124 Hospital.
On 16 November 2010 the applicant was searched in the Donetsk Colony no. 124 Hospital, including an anal search. During the search, a guard hit him in the stomach with his leg, causing the applicant severe pain and a large bruise. As a result of the search a portable telephone was seized from the applicant, which, according to him, had been planted on him.
Having received nearly no assistance for his injuries in the Donetsk Colony no. 124 Hospital, on 19 November 2010 the applicant was transferred to the Romny Colony no. 56 without warm clothes, even though the outside temperatures were below zero.
On 20 November 2010 the applicant arrived in the Kharkiv SIZO by way of transit. On the same date he was examined by a SIZO doctor, who recorded that he had a bruise on his abdomen of 25 by 20 centimetres in size.
As the applicant reported that this bruise had been inflicted on him in the Donetsk Region, in December 2010 the Kharkiv Regional Prosecutor’s Office sent the relevant materials to the Donetsk Region authorities for investigation of the incident.
On 24 November 2010 the applicant arrived in the Romny Colony no. 56.
On 17 December 2010 the Romny Colony administration confirmed to L.K. that the applicant had a stitched wound and a bruise on his abdomen and that he was placed under therapeutic supervision on account of hypertension, radiculitis, deforming osteo-arthrosis, chronic cholecystitis, pancreatitis, vertebral osteochondrosis, obesity, encephalopathy and an emotionally unstable personality disorder. It further noted that the applicant was not in need of any urgent treatment, but a planned in-patient treatment could be scheduled in due course upon request.
On an unspecified date the Sumy Regional Prosecutor’s Office likewise informed the Donetsk Regional Prosecutor’s Office about the applicant’s injuries and requested them to conduct a relevant inquiry.
It appears from the case-file that the Donetsk Regional Prosecutor’s Office took no action to investigate the applicant’s injuries.
12. Other events
According to the applicant, the administration of the detention facilities sometimes secretly recycled his letters addressed to the Court and lied to him about having posted them. This happened, in particular, with his first application to the Court, drafted in March 2004 and his follow-ups prepared in 2005 and 2006 in various detention facilities.
On various dates numerous authorities rejected the applicant’s and L.K.’s requests to provide them with copies of various documents for submission to the Court. Eventually (by 2010) the applicant received copies of most of the documents from his file and submitted a file of several thousand pages to the Court.
According to the applicant, in 2009 the Romny Colony no. 56 administration illicitly hired a detainee to have him killed; the psychiatrist in the Romny Colony no. 56 also attempted to kill the applicant by way of giving him sedative injections with an unknown substance; and the administration of all the detention facilities routinely interfered with the applicant’s correspondence.
COMPLAINTS
The applicant complains under Article 3 of the Convention that:
(a) he was subjected to torture upon his arrest in 2001 with a view to extracting self-incriminating statements;
(b) the physical conditions of his detention in various detention facilities were intolerable;
(c) his health deteriorated in detention on account of the failure of the State authorities to ensure that the conditions of his detention are compatible with his state of health and to organise adequate treatment of his chronic health conditions;
(d) the foreign body inserted in his abdomen on 13 July 2008 was extracted with an undue delay;
(e) he was constantly subjected to physical and verbal ill-treatment by the prison authorities and inmates illicitly hired by them, including during the specific incidents on 24 January and 11 February 2008 and 16 November 2010 in the Donetsk Colony no. 124 Hospital; 21 and 28 February and 8-11 November 2008 in the Zhytomyr Prison no. 8; 15 June and 13 July 2008 in the Lugansk SIZO Hospital; and on 15 November 2010 in the Yenakiyeve Colony no. 52; and
(f) he was arbitrarily held in solitary confinement and under “prophylactic supervision” regime for an extended period of time.
The applicant next complains under Article 5 of the Convention that:
(a) his arrest in 2001 and detention pending investigation and trial in the first set of criminal proceedings were in breach of applicable law and not free from arbitrariness; and
(b) his treatment by the authorities following his conviction was incompatible with his individual rights to freedom and security of person.
The applicant also complains under Article 6 of the Convention that:
(a) both sets of criminal proceedings against him were unfair;
(b) the Supreme Court of Ukraine arbitrarily refused to consider his cassation appeal against the conviction in the second set of criminal proceedings;
(c) the investigations into his allegations of ill-treatment by the State authorities were ineffective.
The applicant additionally complains under Articles 8 and 34 of the Convention that:
(a) the prison authorities secretly recycled some of his letters, including his first letter to the Court prepared in March 2004, and lied to him that these letters were duly posted;
(b) various authorities refused to provide documents requested by the applicant; and
© L.K. was illicitly harassed by the authorities for defending the applicant’s rights;
Finally, the applicant complains under Article 13 of the Convention that he had no domestic remedies for his Convention complaints.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to torture in police custody in breach of Article 3 of the Convention following his arrest in 2001?
2. Were the physical conditions of the applicant’s detention in the Zhytomyr Prison no. 8 and Donetsk Colony no. 124 Hospital compatible with the requirements of Article 3 of the Convention?
3. Was the medical assistance available to the applicant in detention compatible with the requirements of Article 3 of the Convention (see e.g. Ukhan v. Ukraine, no. 30628/02, §§ 72-74, 18 December 2008 and Logvinenko v. Ukraine, no. 13448/07, §§ 60-61 and 69, 14 October 2010)?
In particular:
(a) was the applicant placed under systematic and strategic therapeutic supervision on account of his chronic medical conditions, including a personality disorder and osteo-arthrosis of the knee joints?
(b) were the conditions of the applicant’s detention reasonably adapted to his state of health?
(c) did the applicant receive timely medical assistance with a view to extracting a foreign body inserted in his abdomen on 13 July 2008?
The Government are requested to provide a typed excerpt from the applicant’s medical record starting from his placement in detention in 2001.
4. Was the applicant subjected to physical and/or verbal ill-treatment in breach of Article 3 of the Convention by the prison authorities and/or inmates on 24 January 2008; 11, 21 and 28 February 2008; 15 June 2008; 13 July 2008; 8-11 and 25 November 2008 and 15-16 November 2010?
Are the State authorities responsible for the applicant’s self-injuries, caused on or shortly after the dates of purported acts of ill-treatment listed above?
5. Was the applicant’s solitary confinement compatible with Article 3 of the Convention? Regard being had to the applicant’s allegation that he had been arbitrarily categorised as needing “prophylactic supervision”, the Government are further requested to provide information, whether this solitary confinement was part of the “prophylactic supervision” regime, what other restrictions, if any, applied to the applicant within this regime and whether this regime, as applied to the applicant, was compatible with Article 3 of the Convention (see e.g. Piechowicz v. Poland, no. 20071/07, §§ 161-168).
The Government are requested to provide copies of records concerning the applicant’s prophylactic supervision and placement in solitary confinement.
6. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), were the investigations by the domestic authorities into the incidents of torture and ill-treatment listed in questions 1 and 4 in breach of Article 3 of the Convention?
7. Did the applicant have at his disposal an effective domestic remedy for his complaints concerning physical conditions of his detention and lack of medical assistance under Article 3, as required by Article 13 of the Convention?
Full & Egal Universal Law Academy