CASE OF KUSHNIR 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 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1983. His present place of residence is unknown. 6. On 5 October 2005 the applicant was found guilty of fraud and sentenced to two years’ restriction of liberty. 7. In March 2007 criminal proceedings were instituted against him on suspicion of robbery, theft and illegal drug dealing committed in 2005 and 2007. The applicant was detained as a suspect within this set of proceedings from 8 to 23 March 2007 and from 10 September 2007 to 21 October 2008. During the remaining period of the pre-trial investigation he was bound by an undertaking not to leave his town of residence. 8. On 21 October 2009 the Shevchenkivskyy District Court of Kyiv (“the Shevchenkivskyy Court”) found the applicant guilty as charged and sentenced him to four years’ imprisonment, which also absorbed the outstanding part of the sentence of 5 October 2005 (see paragraph 6 above). 9. On 9 April 2010 the Kyiv City Court of Appeal upheld that judgment. 10. The case file contains no further information about the aforementioned proceedings. 11. On 3 July 2009 Mr B. lodged a complaint with the police to the effect that the applicant had robbed him of a mobile phone on 22 June 2009 (the applicant had then been at liberty subject to an undertaking not to leave his town of residence – see paragraph 7 above). 12. On 3 July 2009, at about 7 p.m., the applicant was summoned to the Shevchenkivskyy District Police Station no. 2 (ТВМ-2 Шевченківського РУ ГУМВС у м. Києві) by a telephone call. According to him, he could not refuse given that he was bound by the undertaking not to leave the town, which also implied his obligation to obey any police summonses. As the applicant further submitted, he was arrested in the police station upon his arrival there without any explanation. According to the report of the police officer involved, the latter had “invited [the applicant] to the police station on suspicion of having committed the criminal offence alleged by [Mr B.]”. 13. It appears that the applicant was held in the police station overnight (see, in particular, paragraph 27 below). The case file contains his written explanations to the police dated 3 July 2009 regarding the events of 22 June 2009. He admitted that he had met Mr B., but denied his involvement in the robbery. 14. On 4 July 2009 a criminal case was opened against the applicant on suspicion of having robbed Mr B. 15. On the same day, at 2.15 p.m., the police issued a report, according to which the applicant had been apprehended at 2 p.m. on 4 July 2009 in the premises of the police station on suspicion of having committed a crime. The applicant signed the report with a comment that he had nothing to say. He also signed extracts from the Constitution and the legislation on pre-trial detention as regards his procedural rights, as well as a waiver of his right to legal assistance. 16. On 4 July 2009 the applicant was questioned as a suspect and denied that he was guilty. 17. On 7 July 2009 the investigator applied to the Shevchenkivskyy Court for an order remanding the applicant in custody pending trial, stating as reasons the applicant’s previous criminal record and the severity of the alleged offence, which was punishable with imprisonment for up to six years. The investigator considered that if the applicant remained at liberty, there was a risk that he would abscond or hinder the investigation. 18. On the same date, having upheld the investigator’s reasoning, the Shevchenkivskyy Court remanded the applicant in custody for two months. 19. On 31 August 2009 the court extended the applicant’s pre-trial detention to three months, having taken into account “the volume of investigative measures still to be undertaken”. 20. From 25 August to 22 September 2009 the applicant was held in the Kyiv City Centre of Forensic Psychiatric Expert Examinations with the aim of clarifying whether he could be held criminally liable. 21. On 19 October 2009 the Shevchenkivskyy Court opened the trial. It dismissed the applicant’s request for the custodial preventive measure to be replaced by an undertaking not to abscond. 22. On 26 July 2010 the court remitted the case for additional pre-trial investigation. 23. On 14 February 2011 the Shevchenkivskyy Court held a preliminary hearing. It upheld the custodial preventive measure in respect of the applicant. 24. On 6 March 2012 the court convicted the applicant as charged and sentenced him to six years’ imprisonment. 25. The Court has not been made aware of any further developments in these domestic proceedings. 26. The applicant alleged that, following his arrest on 3 July 2009, he had been “severely beaten” by the police. The applicant did not provide any factual details of his alleged ill-treatment or of any injuries sustained. 27. According to the applicant, on the morning on 4 July 2009 his mother had received a phone call from a person who had been detained in the same police station and released that morning. The applicant had asked him to pass a message to her stating that he was detained there and that he had been questioned and ill-treated by the police. 28. As further submitted by the applicant, his mother had contacted the police station in order to verify that information, but was told that her son was not there. She had therefore complained to the police and the prosecution authorities about his disappearance. 29. According to the Government, on 4 July 2009 the police had notified the applicant’s mother about his arrest and invited her to come to collect his belongings, which she did. She also signed a receipt to that effect. 30. On 8 July 2009 the applicant was taken to the Kyiv Pre-Trial Detention Centre (the SIZO) (Київський слідчий ізолятор). His medical examination, which was carried out on the same day, did not reveal any injuries, and the applicant did not mention to the doctors that he had been ill-treated. His only complaint was about epigastric pain (see also paragraph 51 below). 31. On 13 July 2009 the applicant’s mother complained to the police and to the prosecution authorities about the alleged ill-treatment of her son in police custody. She also stated that he suffered from a number of contagious diseases and could not therefore be held in detention. 32. On 25 July 2009 the applicant underwent surgery for acute appendicitis and peritonitis. 33. On 28 July and 2 August 2009 the applicant’s mother complained to the prosecution authorities that the need for surgery on her son had been the direct consequence of his alleged ill-treatment on 3 July 2009. 34. On 5 August 2009 the Investigative Unit of the Kyiv Main Police Department (СУ ГУМВС України в місті Києві) completed its internal inquiry into the matter. As noted in the inquiry report, on 4 July 2009 the applicant’s mother had signed a receipt confirming that she had collected her son’s belongings from the police station. She had therefore been aware of his arrest. Furthermore, there was no evidence that any coercion had been used on the applicant. Accordingly, his allegation of ill-treatment was found to be without basis. 35. On 16 August 2009 the SIZO doctors, acting on the instruction of the prosecution authorities, examined the applicant to establish if there were any traces of the alleged ill-treatment. None was discovered. 36. On 21 August 2009 the Shevchenkivskyy District Prosecutor’s Office refused to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment considering it unfounded since there was no evidence of any criminal behaviour by the police in relation to him. 37. On 27 August, 5 and 21 October and 2 November 2009 the prosecutor sent letters to the applicant’s mother informing her of the aforementioned decision. According to the applicant, none of those letters reached his mother. 38. The applicant was detained in the SIZO from 8 July 2009 to 2 July 2012. 39. Without specifying in which cells he had been held and for how long, the applicant described his cells as severely overcrowded, poorly ventilated and damp. 40. According to the information provided by the Government, the applicant was held in the following cells: - cell no. 341, measuring 13.2 sq. m (shared by 6 detainees); - cell no. 14, measuring 31.6 sq. m (shared by 24 detainees); - cell no. 101, measuring 60.9 sq. m (shared by 38 detainees); - cell no. 260, measuring 21 sq. m (shared by 2 detainees); - cell no. 277, measuring 29.9 sq. m (shared by 5 detainees); - cell no. 270, measuring 27.6 sq. m (shared by 4 detainees); - cell no. 273, measuring 24.6 sq. m (shared by 4 detainees); - cell no. 33, measuring 51.8 sq. m (shared by 8 detainees); - cell no. 85, measuring 20.8 sq. m (shared by 10 detainees); - cell no. 331, measuring 12.7 sq. m (shared by 6 detainees); - cell no. 18, measuring 9.1 sq. m (shared by 4 detainees); - cell no. 142, measuring 9.4 sq. m (shared by 3 detainees); - cell no. 74, measuring 9.5 sq. m (shared by 4 detainees); and - cell no. 274, measuring 20.0 sq. m (shared by 4 detainees). 41. According to the Government, the conditions in those cells were adequate and they were equipped with the requisite furnishings and facilities. The windows and the ventilation system allowed fresh air to circulate and a satisfactory level of natural and artificial lighting was provided. 42. On 23 May 2011 the SIZO governor informed the prosecutor of the Kyiv City Prosecutor’s Office in charge of the supervision of lawfulness in prisons that during the period from 1 February to 1 April 2011 the applicant had changed cells five times. Specifically, on 1 February 2011 he was placed in cell no. 33, on 23 February 2011 in cell no. 101, on 5 March 2011 in cell no. 101 again (apparently after a stay in the medical unit), on 11 March 2011 in cell no. 260, and on 1 April 2011 in cell no. 33. The SIZO governor explained those transfers by the fact that the applicant had often been held in the SIZO medical unit, given his poor state of health. 43. On four occasions the applicant was placed in a disciplinary cell for keeping prohibited items (in three cases a mobile telephone and in one case cash): on 14 July 2010, 22 October 2011, 12 December 2011 and 29 February 2012. On each occasion he was held in a disciplinary cell for one day, with the exception of 14 July 2010, when he was placed there for two days. In every case a medical specialist of the SIZO confirmed that the measure in question was compatible with the applicant’s state of health. 44. On 14 July 2011 the applicant’s mother complained to the Prosecutor General’s Office that on 8 July 2011 the SIZO administration had administered emetics to the applicant in order to establish whether any drugs were present in his body. She submitted that it had been an unjustified, humiliating and dangerous measure. 45. On 17 August 2011 the Kyiv Regional Office of the State Prison Department (Управління Державного департаменту України з питань виконання покарань в м. Києві та Київській області) informed the prosecution authorities, in response to the complaints by the applicant’s mother, that the applicant was under the close scrutiny of medical specialists on account of a number of illnesses and that his numerous medical examinations had not revealed any injuries. Furthermore, the applicant had never complained to any authorities or doctors of having been ill-treated during his detention. He had also given a written refusal to make any comment about his mother’s complaints. 46. On 25 October 2011 the applicant’s lawyer complained to the SIZO governor that her client had been unjustifiably incarcerated, and that on 13 and 19 October 2011 he had been beaten by persons wearing masks. 47. On 9 November 2011 the head of the SIZO medical unit replied that the applicant’s allegations were unfounded and that he had not made any complaints himself. 48. In 2004 the applicant was diagnosed with tuberculosis for the first time. 49. In May 2007 he tested HIV-positive. In November 2007 his condition was assessed as clinical stage 3 HIV and AIDS. He was registered for monitoring in the AIDS Centre at the place of his residence. 50. The applicant also suffers from chronic viral hepatitis B and C. 51. On 8 July 2009, upon his arrival at the SIZO, the applicant underwent a medical examination and X-ray, which revealed post-tuberculosis residual lung changes. His height and weight were recorded as 180 cm and 74 kg respectively. The applicant complained of epigastric pain. He also informed the doctors of his past medical history of viral hepatitis B and C, and his HIV-positive status (see also paragraph 30 above). 52. On 15 July 2009 the applicant was examined by two tuberculosis specialists, who confirmed the diagnosis of post-tuberculosis residual changes in the right lung and recommended further medical supervision. 53. On 25 July 2009 the applicant was taken from the SIZO to the emergency hospital, where he underwent surgery in respect of acute appendicitis and peritonitis. The case file does not contain any information as to whether anything had led up to that emergency. Nor did the applicant submit any factual details in that regard, apart from his broadly-couched allegation, in reply to the Government’s observations, that the emergency had been a result of his ill-treatment (see paragraph 99 below). 54. According to the information provided by the Government, from 30 July to 6 November 2009 the applicant was given in-patient post-surgery medical treatment in the SIZO medical unit. The applicant contested this information as untruthful, referring to the fact that from 25 August to 22 September 2009 he had been undergoing forensic psychiatric expert examination in the Kyiv City Psychiatric Hospital (see also paragraph 20 above). The case file contains an extract from the applicant’s medical file held in the SIZO, according to which he received in-patient treatment in the SIZO medical unit from 30 July to 25 August 2009. 55. On 9 October 2009 the applicant was X-rayed. Following the discovery of a focal shadow on the right lung, it was recommended that he consult a specialist. 56. On 16 October 2009 a tuberculosis specialist examined the applicant and found that he had focal tuberculosis of the upper lobe of the right lung at an unclear stage of development. The doctor prescribed a trial chemotherapy regimen consisting of isoniazid, pyrazinamide, rifampicin and ethambutol. 57. On 13 November 2009 the applicant again underwent chest X-rays, which showed focal tuberculosis of the upper lobe of the right lung in the consolidation stage. The radiologist recommended that the applicant consult a tuberculosis specialist. 58. On 17 November 2009 the applicant was invited to undergo another X-ray, but he refused. 59. On 23 and 25 November and on 9 December 2009, at the applicant’s request, a dentist examined him. The diagnosis was chronic multiple complicated caries related to poor dental hygiene, as well as tongue candidiasis. The applicant was provided with some medication, ointment and vitamins, and had the decayed tooth roots removed. 60. On 9 December 2009 the applicant was also examined by a specialist in infectious diseases and underwent a CD4 test. Its result was 618 cells/cu. mm. 61. On 1 April 2010 the applicant underwent X-rays, the findings of which were the same as on 13 November 2009. 62. On 6 June 2010 the applicant was X-rayed again, with no pathological indications having been revealed. 63. On 29 November 2010 the applicant was due to undergo X-rays, but was unable to because he was not feeling well. 64. On 23 December 2010 a radiologist recommended (it is not known in what circumstances) that the applicant consult a tuberculosis specialist. 65. On 18 March 2011 the applicant underwent further X-rays. He was diagnosed with pneumonia triggered by tuberculosis, post-tuberculosis residual changes in the form of focal consolidations in the lower lobe of the left lung, and bronchitis. The radiologist recommended that the applicant consult a tuberculosis specialist. 66. Although the applicant’s medical file shows that he underwent in-patient treatment for pneumonia in the SIZO medical unit from 11 to 30 March 2011, on 15 August 2012 the State Prison Department informed the Agent of the Government, who was collecting information for the purpose of preparing observations for submissions to the Court, that this information “had turned out to be unconfirmed”. 67. On 24 March 2011 the applicant again underwent a CD4 test. Its result was 898 cells/cu. mm. 68. On 11 April 2011 another such test was undertaken, which showed the CD4 count as 836 cells/cu. mm. 69. On 21 April 2011 the applicant underwent another X-ray, which revealed post-tuberculosis focal consolidations in the lower lobe of the right lung. It was recommended that the applicant consult a tuberculosis specialist. 70. Following a complaint from the applicant’s mother regarding the failure to administer antiretroviral therapy to her son, on 26 April 2011 the SIZO administration informed her that the applicant was undergoing treatment for tuberculosis and that a consultation by an infectious diseases specialist was needed to decide about antiretroviral therapy. 71. On 29 April 2011 the applicant was examined by a tuberculosis specialist, who found that he had no active-phase tuberculosis and that his general state of health was good. 72. On 16 August 2011 the applicant’s X-rays showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage. 73. On 21 August 2011 the applicant was examined by a tuberculosis specialist, who prescribed him seasonal relapse prevention therapy with two antibacterial drugs (ethambutol and rifampicin) for ninety days, starting on 10 October 2011 and also a special diet. According to the applicant, this prescription was not implemented in practice. 74. On 8 November 2011 the applicant complained of moderate general weakness and heaviness in the right hypochondrium and was examined again by the tuberculosis specialist. As a result, his ninety-day relapse prevention therapy was slightly modified. 75. On 22 November 2011 the tuberculosis specialist examined the applicant again, with no dynamics noted. The doctor recommended continuation of the treatment and a repeated CD4 test. It is not clear whether that test was carried out. 76. On 6 January 2012 the applicant underwent X-rays which showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage. 77. On the same date the applicant was examined by two tuberculosis specialists, who diagnosed a recurrence of tuberculosis. They recommended a drug susceptibility test and prescribed isoniazid, rifampicin and ethambutol. 78. On 14 May 2012 the applicant had his chest X-rayed. There was a limited fibrosis in the right lung and a suspected ring-shaped shadow on the left lung. The applicant was diagnosed with infiltrative tuberculosis of the upper lobes of both lungs. 79. On 25 May 2012 he was examined by a tuberculosis specialist, who prescribed continuation of the treatment of 6 January 2012. 80. On 5 July 2012 the applicant was transferred to the Zhovtnevska prison no. 17 (Жовтневська виправна колонія № 17) in the Kharkiv region – where there was a hospital specialising in tuberculosis – for the purposes of serving his sentence. 81. According to the applicant, during his detention in the SIZO his weight dropped from 87 kg to 52 kg. He had previously indicated his height as 188 cm. The entry in his medical file in the Zhovtnevska prison upon his arrival there stated his height as 180 cm and his weight as still 74 kg (see also paragraph 51 above). 82. On an unspecified date following the applicant’s transfer to the Zhovtnevska prison (before 28 September 2012 – see paragraph 84 below) his drug susceptibility was tested. It revealed that the applicant was infected with strains of tuberculosis resistant to two of the first-line drugs with which he had been treated before. 83. On 7 September 2012 he was examined by an infectious diseases specialist, who diagnosed him with chronic persistent hepatitis in the remission stage. 84. On 28 September 2012 the applicant was examined by the Head of the Phthisiology and Pneumonology Department of the Kharkiv Medical Academy of Post-Graduation Studies, who prescribed an individual scheme of chemotherapy for him, given his resistance to certain drugs. 85. On 30 September 2012 the applicant underwent a CD4 test. Its result was 469 cells/cu. mm. 86. On 5 October 2012 an infectious diseases doctor from the Kharkiv Regional AIDS Centre examined the applicant and diagnosed tuberculosis, oropharyngeal candidiasis and chronic viral hepatitis. 87. Also on 5 October 2012 the applicant was examined by a tuberculosis specialist from the Kharkiv Medical Academy, who reported positive developments as a result of the treatment and recommended its continuation. 88. According to the extract from the applicant’s medical file issued by the Zhovtnevska prison administration, the applicant was released from detention on 26 October 2012 on the ground of poor health. It was recommended that he register for monitoring in the local AIDS centre and that he continue his treatment for tuberculosis in the place of his residence. 89. None of the parties has submitted to the Court any details as to the circumstances of and the reasons for the applicant’s release. The applicant noted summarily that he “was transferred for treatment in [his] place of residence as his treatment [in detention] had not been successful.”