CASE OF LUNEV v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano
5. The applicant was born in 1977. According to the most recently available information, in June 2013 the applicant was placed by a court under house arrest in the town of Bryanka, Ukraine. The applicant has not informed the Court of his current whereabouts. 6. In January 2012 the applicant was arrested on suspicion of drug trafficking. 7. On 30 January 2012 the applicant was placed in the Starobilsk Pre-Trial Detention Centre (Старобільський слідчий ізолятор) (“the SIZO”). On arrival the applicant was examined by a general practitioner, a psychiatrist, a dentist, a tuberculosis specialist and a dermatologist. According to the Government, the applicant was diagnosed with human immunodeficiency virus (“HIV”) (clinical stage 3), chronic bronchitis, toxic encephalopathy and neuropathy caused by prolonged use of drugs, and tuberculosis residual changes. At that time the applicant’s weight was 55 kg. The applicant is 1.78 metres tall. 8. According to the Government, on 1 February 2012 the applicant was offered a CD4+ cell count, which he refused. The case-file material includes a written note dated 7 February 2012 that the applicant refused “a blood test”. It is signed by a member of staff of the SIZO medical unit. 9. According to the Government, between 30 January 2012 and 8 January 2013 the applicant did not ask for any medical assistance in the SIZO. However, it appears from the applicant’s medical file that in September 2012 he was examined by a tuberculosis specialist and underwent an X-ray. According to the medical records provided by the Government, in November 2012, while briefly detained in a different temporary detention facility, the applicant had bronchitis and complained of kidney pain. 10. On 8 January 2013, following the applicant’s complaint of a cough and a fever, he was diagnosed with chronic bronchitis and was prescribed treatment. 11. On 9 January 2013 the applicant was found unconscious in his cell. 12. On the same day the Head of the SIZO requested the Bryankivskyy Local Court to accelerate the proceedings in the applicant’s case or to release him on an undertaking not to abscond, since the applicant needed urgent medical treatment in a specialised hospital. 13. On 10 January 2013 the above court decided that the applicant should remain in pre-trial detention but should be placed either in a specialised prison hospital or in a civilian hospital. 14. According to a medical certificate, between 9 and 11 January 2013 the applicant was in hospital. He was diagnosed with acute serose meningoencephalitis. It was noted that the applicant was “in a soporose state”. 15. On 11 January 2013 the applicant was returned to the SIZO, where he stayed in the medical unit until 15 February 2013. During this period the applicant was also an inmate at least once in the Alchevsk Temporary Detention Facility (“Alchevsk ITT”) (Алчевський ізолятор тимчасового тримання). 16. On 17 January 2013 the applicant requested under Rule 39 of the Rules of Court that the respondent Government be asked to place him in a hospital. It was argued that the applicant needed additional examination, in particular by a psychiatrist, in order to be prescribed anti-retroviral therapy (“the ART”), and for the stage of his tuberculosis to be correctly determined and for appropriate treatment to be prescribed, as well for him to be provided with adequate medical assistance in respect of the epilepsy from which the applicant allegedly suffered. 17. According to the applicant’s lawyer, Ms Semenyuk, at the end of January 2013 she received a call from an unknown man who presented himself as an employee of a prosecutor’s office. The person wanted to know whether Ms Semenyuk indeed represented the applicant and whether the applicant had lodged an application to the European Court of Human Rights. Ms Semenyuk replied positively to both questions. 18. On 4 February 2013 the Bryankivsk Medical Unit (Брянківське територіальне медичне об’єднання) informed the applicant’s lawyer that since 11 October 2010 the applicant had been registered as receiving regular medical examinations by a doctor of the “Trust” practice based in the Bryanka Central City Polyclinic. He was diagnosed as HIV-positive (clinical stage 2), with chronic bronchitis and toxic encephalopathy. On 27 October 2010 his CD4+ cell count was 374 (18.7%). The applicant refused treatment despite the deterioration of his condition. In 2011 he was diagnosed as HIV-positive at clinical stage 3. The applicant did not take ART, as he had refused the relevant examination. On 8 February 2013 the same information was submitted to the SIZO. 19. The Government submitted that between 11 January and 15 February 2013 the applicant had received treatment for acute serous cerebromeningitis. Moreover, on 5 February 2013 he was X-rayed and seen by a tuberculosis specialist. Following the results of those examinations the applicant was diagnosed with residual changes in the right lung as a result of tuberculosis from which he had already recovered. There was no need for anti-tuberculosis treatment. 20. On 6 February 2013 the applicant was examined by a neuropathologist. He was diagnosed with HIV (clinical stage 3) and toxic encephalopathy. 21. On 19 February 2013 the Bryankivskyy Local Court sentenced the applicant to six and a half years’ imprisonment for drug trafficking. 22. On 26 February 2013 the applicant’s CD4+ cell count was performed with a result of 119 cells (13.1%). 23. By a letter of 7 March 2013 the Government informed the Court that there was no need for the applicant to be hospitalised. 24. On 12 March 2013 the applicant was examined by an infectious diseases specialist and diagnosed with HIV (clinical stage 3), chronic bronchitis, residual effects of tuberculosis, and toxic encephalopathy. ART was recommended. On 14 March 2013 the Lugansk Regional Prisons Department approved the applicant’s admission to the Lugansk Temporary Detention Centre No. 17 Hospital (лікарня при Луганському слідчому ізоляторі №17). 25. The applicant was in that hospital between 20 and 25 March 2013. In addition to the above diagnosis the applicant was diagnosed with weight loss of more than 10% and chronic hepatitis C. The applicant underwent a full blood count, biochemical blood test, sputum and urine test, X-ray and ultrasonography. The applicant was given medication. On discharge a CD4+ count was recommended, among other things. 26. On 22 March 2013 the Court refused the applicant’s request under Rule 39 of the Rules of Court. 27. The applicant was also in the Lugansk Temporary Detention Centre Hospital between 29 March and 5 April and between 12 April and 12 May 2013. On 3 April 2013 he had a CD4+ cell count with a result of 13.5%, or 519 cells. On 16 April 2013 ART was prescribed for the applicant. 28. On 24 May 2013 the Lugansk Regional Court of Appeal quashed the decision of 19 February 2013 in the criminal case against the applicant and remitted the case for a fresh court consideration. 29. On an unknown date the applicant’s lawyer applied to the local court for the applicant’s release, stating that between 20 January 2012 and 9 January 2013 the applicant had received no medical treatment. After 9 January 2013 the applicant was in hospital for some time, but was not now receiving in-patient care. 30. On 19 June 2013 the Bryankovskyy Town Court released the applicant and placed him under house arrest. The court noted that the case-file materials contained enough evidence to satisfy the applicant’s lawyer’s request. The court further noted that the applicant required medical treatment which he could not receive in detention. 31. On 25 January 2013 the applicant was placed in the Alchevsk ITT for the duration of the consideration of his case by the court. 32. At 9 a.m. on 30 January 2013 an ambulance was called for the applicant as he had acute pain in the liver. The applicant was examined and it was recommended that he see a gastroenterologist. The applicant was then taken to Bryanka Central Town Hospital and brought back to the ITT at around 4 p.m. 33. According to the applicant, at around 5.25 p.m. he was beaten up in the ITT by two policemen allegedly from the regional police office. They told him to write that the SIZO had provided him with adequate medical treatment. One of the police officers hit the applicant six or seven times in the liver and the other hit him four times in the kidneys. After that the applicant wrote the statement requested. 34. On 31 January 2013 the applicant’s lawyer, S., complained about this matter at a court hearing. An ambulance was called for the applicant and he was diagnosed with a “possible blunt abdominal trauma”. He was taken to hospital and examined by a surgeon. The latter noted that the applicant complained of pain in the upper abdomen and weakness, but upon examination the applicant’s abdomen was “soft and pain-free”. It was concluded that there was no “acute surgical pathology” and that the applicant could be detained in the ITT. 35. On the same day the applicant and his lawyer complained about the beatings to a prosecutor. The applicant stated that on 30 January 2013 at 5.25 p.m. unknown policemen had visited him in the ITT. He was subjected to physical and psychological pressure and forced to withdraw his application about lack of adequate medical assistance. They also forced him to confess to a crime he was charged with. 36. In the course of the investigation the applicant further testified that on 30 January 2013 at around 5.20 p.m. two unknown policemen had questioned him in the ITT. When he refused to write that he had no complaints about the medical treatment in the SIZO, the policemen hit him several times in the abdomen and kidneys. After that the applicant wrote that he had been provided with adequate medical assistance in the SIZO, that he had no complaints, and that there had been no psychological or physical pressure. The policemen took a written statement from him and he was taken to the shower room and then back to his cell. 37. On 14 February 2013 the forensic medical expert, having examined the medical conclusion of the surgeon of 31 January 2013 and the testimonies of the same surgeon given during the investigation, concluded that “when examined by a surgeon on 31 January 2013 the applicant had no injuries”. 38. On 25 February 2013 the Alchevsk Town Prosecutor terminated the proceedings for absence of evidence of crime. Police officers and others present in the ITT on 30 January 2013 gave a detailed description of what had happened there that day and stated that nobody had beaten the applicant. In particular, at around 4 p.m. the applicant complained that he wanted a different pillow. The applicant was guided to the room where the bedding was kept. The applicant spent around 15-20 minutes there but did not choose a pillow. Then he was guided to the room where personal belongings were kept because he wanted something from his bag. After that the applicant wanted to take a shower but was told that there was no hot water. Since he wanted to check this himself an ITT guard guided him to the shower. Later the applicant was placed back in his cell. The surgeon, who examined the applicant on 31 January 2013, testified that the applicant had been brought to him in order to check whether the applicant could be detained in the ITT. The applicant had no injuries. The prosecutor also referred to the conclusion of a forensic medical examination that the applicant had no injuries. 39. The applicant appealed against this decision to a court. On 26 March 2013 the Alchevskyy Town Court quashed this decision. The court questioned the applicant and his cellmate, K., and considered that the investigation had not been thorough, since the applicant’s cellmates had not been questioned. 40. On 24 April 2013 the ambulance station informed the Bryanka Prosecutor’s Office that on 31 January 2013 the applicant had been examined and diagnosed with “blunt abdominal trauma”. He had complained that he had been beaten up in detention. The applicant was taken to hospital for the diagnosis to be confirmed. 41. On 25 April 2013 the proceedings were terminated for absence of evidence of crime. In addition to those previously questioned more evidence was added. 42. In particular, in the course of the investigation the applicant’s cellmate K. testified that on 30 January 2013 the applicant had been taken out of the cell. He was absent for approximately 40-60 minutes. Upon return the applicant told him that two unknown policemen had forced him to refuse medical treatment in the SIZO. When the applicant refused to do so he was beaten. After that the applicant agreed to write that he did not need medical assistance. According to K., the applicant had a red cheek and cheekbone as well as a swollen liver. The policeman who brought the applicant back to the cell allegedly said that one of the officers was a certain So. from Perevalsk Correctional Colony No. 15. 43. Another of the applicant’s cellmate testified that when he arrived at the ITT he saw the applicant lying on the bed. The applicant told him that policemen had beaten him to force him to confess. The applicant’s cellmate P. testified that he had been sleeping and knew nothing, while the applicant’s cellmate B. refused to testify at all. A police officer, So., was also questioned and testified that on 30 January 2013 he had been at his work place. It was also noted that the surveillance system in the ITT was not working between 26 January and 4 February 2013. 44. On 3 June 2013 the decision of 25 April 2013 was quashed by the Alchevsk Town Prosecutor. It was noted without any further details that “the decision to terminate criminal proceedings had been premature and unsubstantiated, and that a number of procedural steps had not been performed”. 45. On 27 June 2013 the criminal proceedings were again terminated for the absence of evidence of crime. 46. On 4 November 2013 the Alchevskyy Town Court quashed the decision of 27 June 2013. The court found that after 3 June 2013 an investigating officer had not properly looked into the applicant’s lawyer’s complaint. It was also not established why it was impossible to hold a confrontation between the applicant and the police officer So. 47. No further information about these proceedings was provided by the parties.