Published on 28 July 2025
FIFTH SECTION
Application no. 25273/19
Ruslan Vitaliyovych SMOVSKYY
against Ukraine
lodged on 3 May 2019
communicated on 8 July 2025
SUBJECT MATTER OF THE CASE
The application concerns alleged discrimination in access to early release from prison on health grounds.
In June 2006 the applicant was first diagnosed with HIV and hepatitis, he was hospitalised and treated for sepsis, pneumonia and infectious endocarditis affecting the heart valves.
On 28 December 2017 the Kyiv City Court of Appeal upheld the applicant’s conviction of infliction of grievous injuries that caused death (committed in February 2014) and mitigated his sentence to 7 years’ imprisonment.
On 9 August 2018 a commission of physicians at a prison hospital diagnosed the applicant with the following: HIV at stage IV, chronic candidiasis and enterocolitis, acute hepatitis and hepatic insufficiency, consequences of sepsis in 2006, infectious endocarditis of hearth valves, stage II cardiac insufficiency, chronic stage II renal insufficiency and HIV-induced encephalopathy. The commission found that the applicant’s health condition was serious, with a worsening trend. The negative prognosis was due to many complications of the HIV infection, growth cardiac and liver insufficiency and risk of thrombosis. The commission concluded that the diseases were on the official List of Diseases which were considered grounds for applying to a court for release (enacted by joint order of the Ministry of Justice and Ministry of Health no. 1348/5/572). The prison authorities lodged an application for the applicant’s release.
A local court allowed the application and ordered the applicant’s release on the grounds that his diseases were on the List. The court relied on Article 84 § 2 of the Criminal Code which provided that “a person who, after the commission of a crime or after the pronouncement of the verdict, contracts a serious illness which precludes him or her from serving a sentence, may be released”.
In a final decision, on 6 November 2018, the Kyiv Court of Appeal allowed the prosecutor’s appeal and set aside the first-instance decision, noting that release under the relevant provision of the Criminal Code was possible only for diseases contracted after commission of a crime while the applicant’s diseases had been contracted before, in 2006. Moreover, after contracting those diseases the applicant had committed further offences of which he had been convicted in 2007, 2009 and 2017. In such circumstances, the court could not conclude that the applicant’s physical state would prevent him from continuing his criminal lifestyle and the case materials did not contain any data which would indicate that either. Moreover, the content of the application and the statements of the prison representative during the court hearing confirmed that the applicant was receiving adequate medical care.
At the relevant time, the applicable regulations at subordinated legislation level and relevant Supreme Court guidance[1] envisaged applications for release on health grounds in respect of conditions which were contracted prior to the conviction but which aggravated in prison.
Relying on Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12 the applicant complains of discrimination on the ground of time when his diseases were contracted.
QUESTIONS TO THE PARTIES
Has the applicant suffered discrimination on the ground of the time when he first contracted his diseases, contrary to Article 1 of Protocol No. 12 to the Convention?
In particular, has the applicant been subjected to a difference in treatment, on account of the decision not to release him on health grounds (see, for example and mutatis mutandis, G.N. and Others v. Italy, no. 43134/05, §§ 126-27, 1 December 2009, and Kiyutin v. Russia, no. 2700/10, § 57, 10 March 2011)? If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification (see, for example and mutatis mutandis, Gülay Çetin v. Turkey (no. 44084/10, §§ 128-33, 5 March 2013)?
[1] Regulations on Provision of Medical Care to Those Convicted to Imprisonment, enacted by the joint order of the Ministries of Justice and Health no. 1348/5/572 of 15 August 2014; Resolution of the plenary Supreme Court of Ukraine of 28 September 1973 no. 8 “On Judicial Practice in Relation to Release of Detainees who Have Contracted Serious Illnesses”.