CASE OF KONOVALCHUK 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 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
5. The applicant was born in 1975 and prior to her arrest had a permanent address in Artsyz in Odessa Region. 6. In 2009 the applicant was diagnosed with HIV. 7. In September 2012 she was arrested on suspicion of drug dealing. 8. In December 2012 the applicant started receiving anti-retroviral therapy (“ART”). 9. On 16 September 2013 the Odessa Malynovsky District Court convicted the applicant of a number of drug-related offences and sentenced her to six years and six months’ imprisonment. 10. On an unspecified date the applicant appealed on points of law to the Higher Specialised Civil and Criminal Court (“the HSC”). 11. On 5 October 2014 the applicant arrived at Zbarazh Correctional Colony no. 63 (“the Colony”) to serve her sentence. 12. On 17 October 2014 a cytology test revealed indications of cervical cancer. 13. On 6 December 2014 the applicant was transferred to the oncology department of the hospital at the Lviv Pre-Trial Detention Centre (“the Oncology Facility”) for medical examination. 14. On 15 December 2014 the Oncology Facility issued its conclusion concerning the applicant. In addition to stage IV HIV, she was diagnosed with cervical cancer. The opinion stated that due to the state of the applicant’s immune system, surgery was to be ruled out. It was recommended that the applicant be transferred to the hospital at Daryivska Correctional Colony no. 10 in Kherson Region, which specialised in HIV treatment (“the HIV Treatment Facility”) for normalisation of T-cell levels, and then transferred back to the Oncology Facility. 15. On the same day the applicant was transferred back to the Colony. 16. On 3 March 2015 the applicant was admitted to the HIV Treatment Facility. Upon conclusion of a course of ART, on 11 March 2015 the HIV Treatment Facility issued a certificate stating that the applicant had been receiving ART without interruption since December 2012. Her diagnosis was recorded as stage IV HIV with heavy immunosuppression, cervical cancer, chronic hepatitis in remission, ovarian cysts, fibroma of the vocal cords, and oral candidiasis. It was recommended in particular that the applicant continue ART and take hepatoprotectors. The applicant was referred to the Oncology Facility. 17. On 17 March 2015 the applicant left the HIV Treatment Facility under guard and on 5 April 2015 arrived back at the Colony where she was put under the supervision of the prison doctor (a general practitioner) as an outpatient and continued with her ART. 18. On 16 April 2015 the applicant left the Colony under guard and on 22 April 2015 arrived at the Kyiv Pre-Trial Detention Centre (“the Kyiv SIZO”) in order to be able to attend the appeal hearings in her case. 19. On 25 May 2015 the applicant lodged a request with the Kyiv Shevchenkivsky District Court (“the Shevchenkivsky Court”) seeking release on health grounds. 20. In an undated letter submitted to the Shevchenkivsky Court on 8 June 2015 the Kyiv SIZO governor and the head of its medical unit informed the court that the applicant was receiving ART at the SIZO but her cancer could only be treated with radiation therapy, which could not be provided at the SIZO. 21. On 10 June 2015 a test revealed that the applicant had (an apparently low) viral load of less than forty copies per ml. 22. On 25 June 2015 the Shevchenkivsky Court rejected the applicant’s request for release. 23. On 1 July 2015 the Acting President of the Section decided, upon the applicant’s request under Rule 39 of the Rules of Court, to indicate to the Government that they should present the applicant urgently for medical examination by a specialist doctor; secure immediately, by appropriate means, treatment of the applicant appropriate to her conditions, and inform the Court by 1 August 2015 about the applicant’s state of health and the measures undertaken. 24. On 6 July 2015 the Government Agent’s office asked the prison authorities to take appropriate action to ensure the applicant’s examination and treatment and to inform it of the applicant’s situation. 25. On 8 July 2015 the SIZO governor asked the Kyiv City Clinical Oncology Centre (“the Kyiv Oncology Centre”), a specialist civilian institution, to arrange for the examination of the applicant by one of the Centre’s specialists. 26. On 13 July 2015 the applicant was examined by a gynaecological oncologist from the Kyiv Oncology Centre. The doctor recommended that the applicant (i) have a further consultation with an infectious diseases specialist concerning the possibilities for cancer treatment in the light of her living with HIV and (ii) undergo radiation therapy at an institution specialising in gynaecological oncology. 27. On 16 July 2015 the applicant was examined by an infectious diseases specialist. The specialist recommended a change in the ART scheme and noted that there were no contraindications for treatment of her cervical cancer. 28. On 29 July 2015, the applicant refused to change the ART scheme stating that “no viral load has been found” in her (вирусная загрузка у меня не выявлена). 29. On 30 July 2015 the applicant wrote a statement to the SIZO governor informing him that she did not wish to start her radiation therapy at that moment because she feared she would not have enough time to complete it while at the Kyiv SIZO, where she would be held until HSC examined her appeal against her conviction. 30. On 31 July 2015 the Government informed the Court of the steps taken by the authorities after the Court had indicated the interim measure and provided the relevant medical documentation. 31. On 7 August 2015 the applicant was examined by a panel of specialists at the Kyiv Oncology Centre. Her diagnoses were confirmed and she was prescribed radiation therapy. 32. On 27 August 2015 the HSC upheld the applicant’s conviction but reduced her sentence to four years. 33. On 14 September 2015 the applicant wrote to the Court, alleging that the Government had failed to comply with the interim measure indicated by the Court. In particular, she alleged that she was still not receiving the recommended radiation therapy. She also alleged that her transfer to the Oncology Facility would be conducted by rail in conditions incompatible with her state of health. 34. On 16 September 2015 the applicant left the Kyiv SIZO for the HIV Treatment Facility, travelling through the Odessa SIZO, where she was held from 17 to 19 September, and the Kherson SIZO, where she was held from 20 to 24 September 2015. On 24 September 2015 she arrived at the HIV Treatment Facility. 35. On 17 September 2015 the Court asked the Government to provide factual information concerning the reasons for which the applicant had not been treated with radiation therapy and the specific plans for her future treatment. 36. From 24 September 2015 the applicant started a course of examinations and treatment at the HIV Treatment Facility and at the Kherson Regional Oncology Clinic. 37. On 25 September 2015 the Government again informed the Court of the medical examinations the applicant had undergone during the period following the Court’s decision to indicate the interim measure. 38. From 5 to 27 October 2015 the applicant underwent radiation treatment at the Kherson Regional Oncology Clinic; she was recommended another course starting on 17 November but on 14 November 2015 she refused to undergo it citing the side effects of the previous treatment. 39. On 25 October 2015 the Government informed the Court of the applicant’s first radiation therapy course. 40. On 30 October 2015 the applicant left the HIV Treatment Facility and on 14 November 2015 she was admitted to the Oncology Facility. 41. On 4 January 2016 the applicant was released on health grounds.