CASE OF PETUKHOV v. UKRAINE
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;No violation of Art. 6-1;Violation of Art. 13;No violation of Art. 13;Non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1973 and is currently serving a life sentence in Sokalska Correctional Colony no. 47 (Сокальська виправна колонія № 47). 6. On 6 June 2001 policemen attached to the Kominternovsky District Police Department of Kharkiv (Комінтернівський РВ ХМУ УМВС України в Харківській обл.), acting on information from an unknown source, arrested and detained the applicant on suspicion of murder and robbery. The applicant stated that he had been arrested the day before, on 5 June 2001. 7. On 8 June 2001 the applicant was questioned. He indicated that he did not need a lawyer. 8. On 9 June 2001 the applicant was transported to Kyiv, where he was placed in the Minsky District Temporary Detention Centre (Мінський районний ізолятор тимчасового тримання). 9. On 12 June 2001 the Prosecutor's Office of the Minsky District of Kyiv (Прокуратура Мінського району м. Києва) remanded the applicant in custody on the grounds that the applicant could escape and obstruct justice. 10. On 21 June 2001 formal charges were brought against the applicant on several counts of murder and attempted murder, attempted murder of police officers on duty, robbery and participation in an organised gang. When questioned on the same day in the presence of his lawyer, the applicant confessed to these charges. 11. On 2 August 2001 the Minsky District Court of Kyiv extended the applicant's pre-trial detention to a maximum of four months since “it was necessary to carry out a large scale investigation”. 12. On 5 October 2001 the Kyiv City Court of Appeal (hereinafter - “the Court of Appeal”) decided to extend the term of his pre-trial detention until 8 December 2001 given “the information on the applicant's personality” and the gravity of charges. 13. On 29 November 2001 the investigator declared the pre-trial investigation complete and granted the applicant and his lawyer access to the case file, which they finished studying on 30 October 2002. 14. On 9 December 2002, in the course of a preparatory hearing attended by the applicant and his lawyer, the Court of Appeal found that the case was not ready for consideration on the merits and decided to remit it to the prosecution for further investigation. It also held that the applicant should remain in pre-trial detention as he could obstruct justice if released. 15. On 24 April 2003, after a hearing attended by the applicant's lawyer, the Supreme Court of Ukraine upheld the decision of 9 December 2002 on the main points and decided that the applicant should remain in pre-trial detention as he could obstruct justice if released. 16. On 19 June 2003 the applicant's case file arrived from the Supreme Court at the Prosecutor's Office of the Obolonsky District of Kyiv (Прокуратура Оболонського району м. Києва). 17. On 18 July 2003 the Court of Appeal examined the prosecution's application to extend the applicant's pre-trial detention. The applicant's lawyer was present at this hearing and lodged an unsuccessful request for the release of her client. The Court of Appeal decided to extend the applicant's pre-trial detention for up to a maximum of nine months (according to the relevant legal provisions, at the material time, the terms of pre-trial detention applied only to the periods when the case was being investigated. The time when the case was in the court, when the accused was studying the case-file etc. were not taken into consideration). In doing so, the court referred to the complexity of the case, the seriousness of the crimes of which the applicant was accused, his personality and the fact that he could obstruct justice if released. 18. On 26 August 2003 the additional investigations were completed and on the following day the applicant and his lawyer were given access to the case file. 19. On 17 September 2003 the Supreme Court of Ukraine, at the request of the Prosecutor's Office of the Obolonsky District of Kyiv, extended the applicant's pre-trial detention to a maximum of twelve months. It based this decision on the seriousness of the charges. 20. On 18 December 2003 the Supreme Court of Ukraine granted the prosecution's request to extend the applicant's pre-trial detention until 19 March 2004. 21. On 16 March 2004 the applicant's pre-trial detention was extended by the Supreme Court of Ukraine until 19 May 2004. It took this decision on the basis of the seriousness of the charges brought against him. In this decision, the Supreme Court did not deal with the request of the applicant's lawyer to release her client on medical grounds. 22. On 18 May 2004 the Supreme Court of Ukraine dismissed the prosecution's application for a further extension of the applicant's pre-trial detention. The Supreme Court held that although the accused had been studying the twelve volumes of case materials since 27 August 2003 and he still had around ten volumes to study, there was no indication that the accused had deliberately delayed a trial. According to the court, the case materials had not been properly filed (in two volumes there were no lists of documents and pages were numbered in pencil). Therefore, the Supreme Court concluded that the investigation authorities had failed to properly present case-file materials and there were no grounds for an extension of the applicant's detention on remand. 23. On 19 May 2004 the Prosecutor General's Office (Генеральна Прокуратура України) asked the Supreme Court to lodge an application for an extraordinary review of this decision, considering, inter alia, that such decision would allow “persons who have committed serious offences to avoid isolation from society”. 24. On the same day the applicant's case file was sent to the Court of Appeal for consideration on the merits. 25. On 20 May 2004 five judges of the Supreme Court lodged an application for extraordinary review (подання в порядку виключного провадження) of the decision of 18 May 2004. 26. In the course of a joint session held on 21 May 2004 which was attended by the prosecutor but not by the applicant or his lawyer, with judge P. acting as judge-rapporteur, the Criminal and Military Boards (Судова палата з кримінальних справ і Військова колегія) of the Supreme Court set aside the decision of 18 May 2004 on the ground that the reasons given for the dismissal of the prosecution's request to extend the applicant's detention were insufficient and irrelevant, and ordered a rehearing. In particular, the court held that the investigating officer could not limit the time for studying the case file. 27. On 24 May 2004 the Supreme Court granted the prosecution's application for an extension of the applicant's pre-trial detention until 19 June 2004, as the applicant still needed time to study the case file. The court found no reason to release the applicant. 28. On an unidentified date the case was transferred to the court for consideration of the charges against the applicant. 29. On 3 December 2004 the Court of Appeal found the applicant guilty as charged and sentenced him to life imprisonment. The applicant's conviction was based on his initial confession statements, an extensive amount of different evidence and statements from eleven witnesses and ten victims. Three of his accomplices were also sentenced to different terms of imprisonment. The applicant appealed. 30. On 24 May 2005 the three Supreme Court judges, including judge P., upheld this judgment. 31. On 30 May 2007 the Supreme Court rejected the applicant's request for review of his case under the extraordinary review procedure. 32. Between 2005 and 2007 the applicant instituted proceedings against the judges of the Court of Appeal complaining of different procedural shortcomings in the course of consideration of his criminal case. All of his complaints and subsequent appeals were rejected since the applicant should have raised these complaints during the examination of his case and not in a separate set of proceedings. 33. Before his arrest the applicant suffered from limited mobility caused by a multiple fracture of his left thigh which was the result of a gunshot wound. He had a metallic plate fitted, but this became dislodged and caused a deformation of the bone. As a consequence the applicant's left leg was 3 cm shorter than his right and he suffered from pains in his left leg. According to a certificate issued by Yalta Town Hospital (Ялтинська міська лікарня) on 10 January 2002, the applicant received in-patient treatment there between 27 November and 12 December 2000 for a left thigh fracture which, according to this certificate, required further surgery and inpatient treatment. 34. On 8 August 2001 the applicant was transferred from the police detention facility, where he had been held since June 2001, to Kyiv PreTrial Detention Centre no. 13 (Київський слідчий ізолятор № 13, (“SIZO no. 13”)). 35. Upon his arrival, the applicant was examined by a doctor. The chest X-ray taken on 7 August 2001 revealed no abnormalities in the applicant's lungs. 36. According to the applicant, from the date of his admission and until 1 April 2003 he was subjected to a high security regime. In particular, he was only allowed outside his cell when handcuffed and accompanied by two guards with a prison dog in attendance. He was also held in a metal cage during his lawyer's visits and interviews by the investigator. 37. On 16 January 2002 the applicant was punished for an unspecified offence with five days' confinement in a punishment cell (карцер). After this punishment he caught a cold, for which, according to the applicant, he received no treatment. 38. On 31 January 2002 the applicant's lawyer requested a surgeon from Polyclinic no. 3 of the Solomyansky District of Kyiv (Поліклініка № 3 Солом'янського району м. Києва) to give his opinion on the applicant's orthopaedic problems. The surgeon, having examined the applicant and his medical case file, found that he had sustained a multiple fracture of the left thigh and was suffering pain related to this fracture. He needed further examination by an orthopaedist and in-patient treatment in a specialist hospital. The applicant also required a crutch, orthopaedic shoes and strong painkillers. 39. In March 2002 the applicant allegedly started to cough. 40. On 21 and 22 August 2002 the applicant was examined by prison doctors and diagnosed as suffering from infiltrative tuberculosis, pleurisy and a compound fracture of the left thigh. On the latter date he was moved to the medical wing of SIZO no. 13. 41. According to the Government, between 28 August and 15 October 2002 the applicant refused to take medication but did not sign any such refusal. 42. In a letter of 26 September 2002 the Head of the State Department for Enforcement of Sentences (Державний департамент виконання покарань) stated that the applicant had been placed to a punishment cell for 5 days and subjected to a high security regime; he was able to walk without a crutch and had refused medical assistance for his health problems. 43. According to a report of 10 October 2002 signed by the medical officer of the State Department for Enforcement of Sentences and by the SIZO doctor, the applicant had not complained about coughing between February and April 2002. The applicant had special orthopaedic shoes but, according to the surgeon's conclusion, needed a crutch and surgery. The applicant's condition had been satisfactory. He had been prescribed various medications but had only taken one of them as he had wanted to receive medications from home. 44. In November 2002 the Kyiv Traumatology Institute (Київський науково-дослідний інститут травматології та ортопедії) issued a certificate according to which the applicant did not need surgery. The certificate was signed by a senior scientist (старший науковий співробітник). 45. According to the applicant, on 10 December 2002 he was again punished with five days' detention in a punishment cell. Since the temperature there was lower and humidity higher than in the medical cell, the applicant's health deteriorated significantly. 46. The Government submitted that between 12 March and 28 April 2003 the applicant again refused to take medication. 47. In October 2003 the applicant was examined by the Head of the Orthopaedic Department of the Kyiv Medical Academy of Postgraduate Studies (Кафедра ортопедії Київської медичної академії післядипломної освіти) who, in his opinion of 10 October 2003, stated that the applicant's compound fracture of the left thigh required in-patient treatment in a specialist hospital. 48. In 18 November 2003 the applicant's state of health declined. He had two X-rays, and medication was administered directly into the pleural cavity. On 18 December 2003 the applicant was examined by P., a professor of phthisiology, who prescribed him further treatment. 49. In January 2004 the applicant's tuberculosis was aggravated by a pyopneumothorax (accumulation of pus in the pleural cavity) on account of which he was transferred to the Institute of Phthisiology and Pulmonology (Інститут фтізіатрії та пульмонології (hereinafter - “the Institute”)) on 4 February 2004. 50. On 5 February 2004 the administration of SIZO no. 13 asked the investigator in charge of the applicant's case to consider the possibility of the releasing the applicant, referring, inter alia, to the fact that his condition required a lengthy period of treatment in a specialist hospital. 51. On 21 February 2004 the Prosecutor of the Obolonskiy District of Kyiv replied that the applicant's detention had been extended by the Supreme Court and that there were no reasons to change this decision. 52. On 9 March 2004 the applicant was transferred from the Institute to SIZO no. 13. According to the applicant, because his treatment at the Institute had not been finished, he had still had tubes in his lungs for draining pus and further antibiotic treatment when he was transferred. He had received no such treatment in the SIZO and since the place where the tubes were inserted had become infected, the applicant had removed them himself. 53. According to a letter, written in reply to a request for information made by the applicant's lawyer on 11 March 2004 and signed by the Institute's head doctor, the head of the relevant department and the treating doctor at the Institute, the applicant's treatment had consisted of pleural drainage and the administration of antibiotics, carried out in parallel with intensive anti-tuberculosis treatment. It was necessary to continue this treatment in future. The doctors were aware of the applicant's orthopaedic problems, which aggravated his general condition, but this had not affected his treatment for tuberculosis. 54. On 24 March 2004 the applicant's lawyer requested that medical evidence be obtained in order to assess the applicant's fitness for detention in SIZO no. 13. 55. In a report of 19 April 2004 a panel of five experts from the Bureau of Forensic Medical Examinations of the Kyiv City State Administration (Бюро судово-медичної експертизи Головного Управління охорони здоров'я та медичного забезпечення Київської міської державної адміністрації) established that the applicant had sustained a compound fracture of the left thigh which had resulted in a substantial deformation of his left leg, causing limited mobility and considerable pain. The continued failure of the prison authorities to address this condition and his consequent reduced immunity may have been the reason why the applicant had contracted tuberculosis. The experts found that the applicant required specialist in-patient treatment, which could not be provided in the medical unit of SIZO no. 13. 56. On 27 July 2004 the doctor of the Traumatology and Orthopaedics Institute of the Academy of Medicine (Інститут травматології та ортопедії Академії медичних наук України) concluded that the applicant “could not have surgery on his left thigh”. 57. Between July 2004 and January 2005 the applicant had two chest Xrays and was twice examined by professor of phthisiology P. 58. On 8 October 2004, following an enquiry from the court, the SIZO administration issued a certificate stating that the applicant was suffering from chronic tuberculosis and other diseases but that his state of health was satisfactory and he could take part in court hearings. 59. On 2 December 2004 the applicant instituted proceedings in the Shevchenkivskyy District Court of Kyiv against the head of SIZO no. 13 and the head of its medical ward seeking his transfer to a specialised hospital and complaining that the information provided in the certificate of 8 October 2004 had not been true. 60. On 11 February 2005 the court rejected the applicant's complaints. In particular, the court found that the certificate in question had been accepted by the Court of Appeal and included in the applicant's criminal case file, therefore, there were no reasons to question its veracity. The court further found that the applicant had received the necessary medical treatment in the SIZO. This decision was not appealed against by the applicant. 61. According to the Government, the applicant refused to undergo medical tests on four occasions between January and July 2005. The relevant refusals were signed by the SIZO doctors but not by the applicant. 62. On 4 July 2005 the applicant was diagnosed with pleuropneumonia cirrhosis of the right lung, having been cured of cirrhotic tuberculosis. 63. On 1 November 2005, after the applicant's conviction had been upheld on appeal by the Supreme Court, he was transferred from SIZO no. 13 to Zamkova Correctional Colony no. 58 (Замкова ВК-58) to serve his prison sentence. 64. On an unspecified date the applicant was further transferred to Sokalska Correctional Colony no. 47 (Сокальська ВК-47). 65. On 9 February 2006 the applicant underwent surgery on his left leg. 66. According to the documents further submitted by the applicant's lawyers (letters from the Ukrainian-American Bureau for the Protection of Human Rights and from Sokalska Correctional Colony no. 47), he is still suffering from fibrocaseous tuberculosis of the right lung. 67. The relevant provisions of the Constitution of Ukraine read as follows: “Human and citizens' rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of State authorities, local authorities, officials and officers. ... Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” 68. In accordance with Article 165-3 of the Code of Criminal Procedure, decisions of the judge of the Supreme Court of Ukraine on detention on remand are not subject to appeal. 69. Other relevant provisions of the Code are summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005II (extracts)), and Solovey and Zozulya v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27 November 2008)). 70. On 3 April 2003 changes were introduced to Articles 156 and 218 of the Code. According to these new rules, access to the case file should be provided to the detained defendant at least a month before the expiry of the authorised term of detention. If one month proves insufficient for the defendant to familiarise him or herself with the case file, the investigator can lodge an application with the relevant court of appeal, pre-approved by the Prosecutor General, for an extension of the term of the defendant's detention. The time in which the defendant and his or her lawyer familiarise themselves with the case file cannot be limited. 71. In so far as tuberculosis is concerned, the Committee for the Prevention of Torture's report on its visit to Ukraine in 2005 (CPT/Inf (2007) 22) reads as follows: “58. The delegation's observations in relation to tuberculosis are a source of great concern. There were often considerable delays in screening for tuberculosis. [...] Further, it recommends that the Ukrainian authorities ensure: - the early and effective screening for tuberculosis of all persons detained by the Militia; - the provision of uninterrupted treatment for persons already receiving anti-tuberculosis drugs at the time of apprehension.” 72. Other relevant international reports and other materials concerning the treatment of tuberculosis in Ukrainian penitentiary establishments can be found in the judgment of 28 March 2006 in the case of Melnik v. Ukraine, (no. 72286/01, §§ 47-53) and in the judgment of 19 February 2009 in the case of Malenko v. Ukraine (no. 18660/03, § 2830).