CASE OF LOGVINENKO v. UKRAINE
Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
5. The applicant was born in 1976 and is currently serving a life sentence in Kherson. 6. On 2 March 2001 the applicant was arrested and placed in the Kyivskyy District police station of Simferopil on suspicion of murder. 7. On 7 March 2001 the applicant was transferred to the Simferopil police temporary detention centre (the “ITT”). 8. On 27 April 2001 the applicant was transferred to the Simferopil no. 15 pre-trial detention centre (“the SIZO”) and on the same date placed in the Crimean Psychiatric Hospital for in-patient psychiatric assessment. 9. On 24 May 2001 the applicant was transferred back to the SIZO. 10. On 26 October 2001 the Court of Appeal of the Autonomous Republic of Crimea convicted the applicant of murder and sentenced him to life imprisonment. 11. On 28 February 2002 the Supreme Court of Ukraine upheld this judgment and it became final. 12. In October 2004 the applicant was transferred to Sokalska no. 47 Penitentiary, Lviv Region (“Penitentiary no. 47”). 13. In November 2006 the applicant was transferred to Kherson no. 61 Penitentiary (“Penitentiary no. 61) and placed in the prison hospital. 14. In spring 1997 (prior to his detention) the applicant was diagnosed with infiltrated tuberculosis of the lung. In February 2000 he was also diagnosed with late stage of HIV (Aids). 15. According to the applicant, throughout the period of 2001-2008 the medical assistance afforded to him on account of his HIV and tuberculosis was grossly inadequate, while the physical arrangements of his detention were incompatible with his state of health. 16. In particular, as regards HIV, no treatment was offered whatsoever. Furthermore, in spite of the doctors' recommendations and the applicant's numerous requests, throughout the period of his detention he was denied blood tests to establish his count of CD-4 immunity cells, which are instrumental in combating tuberculosis and possibly inhibited as a result of HIV. On several occasions the applicant was informed that antiretroviral therapy would become available to him after the successful treatment of his tuberculosis. 17. As regards the treatment for tuberculosis, it was irregular and insufficient. In particular, in spite of the applicant's numerous complaints about his state of health (namely, shortness of breath, fever, chest pain, and so on), no medical assistance whatsoever was provided to him between March and May 2001. 18. On 28 May 2001 the applicant was examined by a panel of the SIZO medical officers, who found that he was at risk of death if his state of health was not promptly addressed and recommended his release in view of the fact that the SIZO lacked the necessary facilities for his treatment. The applicant submitted a copy of the letter from the medical panel addressed to the SIZO governor and a letter from the governor to the district court dated 16 July 2001 requesting his release on humanitarian grounds. It is not clear whether these letters generated any reaction from the court. The applicant, however, remained in detention. 19. Since June 2001 the applicant has been receiving treatment for tuberculosis, but it has not been effective. On many occasions he was denied routine consultations in spite of his demands. However, even when he was able to obtain consultations, the recommendations of the doctors were not followed through effectively. For example, on 13 July 2006 the applicant consulted a panel of medical specialists and was advised to undergo a number of tests. However, these tests were not carried out because the necessary facilities were unavailable, with the exception of two blood tests (biochemical and general) carried out in August 2006. The applicant was likewise unable to obtain timely tests on a number of other (unspecified) occasions in spite of his demands. 20. The applicant's recovery from tuberculosis was further impeded by the physical conditions of his detention. In all of the facilities in which he was detained, the applicant was largely confined to his cell. In the ITT he had to sleep on a bare mattress, as no linen was provided. Furthermore, he had no opportunity to wash, shave or take outdoor exercise. In Penitentiary no. 47 the cells had no mirrors or drawers and were poorly heated. The air was so damp that the walls and ceilings were covered with fungi and mould, as well as frost during the winter months. The drinking water was rusty and hot water for washing was not available more than once every two to three weeks. Despite suffering from active tuberculosis, on some occasions the applicant had to share a cell with other prisoners, including those who were healthy, which provoked conflicts. As a result of the lack of treatment and the inadequate conditions of his detention, the applicant caught bronchitis and pneumonia on various occasions, while his tuberculosis spread further and became chronic. 21. By way of evidence, the applicant presented a statement by his cellmate, Mr G. According to him, he shared the applicant's cell on various occasions for periods lasting from several days to several weeks. Their cell was very cold and no adequate clothing was provided. On numerous occasions the applicant's requests for medical assistance were ignored and the actual administration of anti-tuberculosis drugs was irregular, provoking the aggravation of his condition and resistance of the bacteria to treatment. 22. On numerous occasions the applicant complained to various authorities, including the ombudsman, the Prosecutor's Office and the local Department for the Enforcement of Sentences, of the inadequacy of his medical assistance and the incompatibility of the conditions of his detention with his state of health. His complaints, however, were to no avail. 23. On two occasions the applicant attempted to lodge complaints about the conditions of his detention with two different courts; however, his submissions were rejected with reference to a lack of territorial jurisdiction. At one time the applicant demanded that a court clerk be commissioned to assist him in drafting his submissions, but this request was refused as not based on law. The applicant never appealed against the court decisions not to examine his claims. 24. In September 2006, following the applicant's numerous complaints to the prosecutor's office, the Lviv Prosecutor's Office contacted the Chief of the Regional Department for the Enforcement of Sentences and the governor of Penitentiary no. 47, urging them to take urgent measures to ensure that the applicant receive a comprehensive medical examination. Following this intervention, in November 2006 the applicant was transferred to Kherson no. 61 Penitentiary Hospital. However, following the applicant's transfer, healthcare arrangements did not improve significantly. In particular, no HIV therapy was made available to him. 25. The Government presented extensive handwritten medical notes, which are hardly legible, and a typed synopsis of the applicant's treatment history, on the basis of which they alleged that the applicant was regularly and consistently supervised and received treatment in compliance with the applicable Ministry of Health guidelines. 26. According to the synopsis, on 27 April 2001 the applicant was examined by a tuberculosis specialist and diagnosed as suffering from focal tuberculosis of the upper part of the right lung in the consolidation stage. 27. On 28 May 2001 the applicant was x-rayed. His x-ray indicated small low-intensity foci of the tuberculosis infection in the upper part of the right lung. Following this test, the applicant was prescribed standard treatment of a combination of “first-line” anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin, ethambutol and pyrazinamide) and vitamins. 28. The applicant was further examined by a tuberculosis specialist and (or) x-rayed in September 2001 (infiltrating tuberculosis; same treatment continued); March 2002 (diffusion and consolidation of the infection – positive dynamics); September and November 2004 (disseminated tuberculosis of the upper parts of both lungs, diffusion and consolidation stage); February 2005 (positive dynamics: namely, large remaining modifications after the tuberculosis infection – anti-recurrence treatment with “first-line” antibiotics and diet prescribed); May 2005 (same as before); June and November 2005 (recurrence of the tuberculosis infection in both lungs, including tissue destruction); January and February 2006 (recurrent tuberculosis, consolidation stage (positive dynamics), same treatment); June and July 2006 (same diagnosis including tissue destruction; same treatment); October 2006 (chronic tuberculosis including pulmonary fibrosis, numerous polymorphous foci of various sizes and numerous tuberculomas); October 2007 (results unspecified); August 2008 (the number of foci increased in both lungs); February 2009 (slight diffusion and consolidation of the infection foci (positive dynamics)). 29. The synopsis further gives a detailed account of the numerous tests carried out of the applicant's blood, urine and sputum between November 2006 and December 2007 and a record of a drug-resistance test taken in February 2007. Following the test for drug resistance, it was established that the applicant was resistant to some of the “first-line” anti-tuberculosis medication and his treatment regime was supplemented with some “second-line” drugs. 30. In addition, in May and June 2005 the applicant received anti-inflammatory treatment on account of pneumonia in May 2005 and was treated for bronchitis in August 2005. In August 2008 the applicant was diagnosed with chronic bronchitis and hepatitis. 31. In the light of the positive tuberculosis dynamics, the applicant began preparing for HIV therapy at the beginning of 2009. 32. According to the applicant, immediately upon his and two other convicts' arrival at Penitentiary no. 47 in October 2004, they had their heads covered with sacks, were forced onto their knees, handcuffed and beaten by unnamed junior officers for no reason. Furthermore, they were threatened with a dog, strip searched, and then forced to do sit-ups which were counted. Subsequently, on numerous occasions the officers continued to humiliate the applicant and create a stressful atmosphere. In particular, on numerous occasions they beat him, threatened him with a dog, knocked on the door with a stick for no reason, interrupted his sleep, opened the door to the cell suddenly for various checks, and verbally insulted him. During the daytime the applicant was forbidden to lie on the bed. Furthermore, when the applicant needed to leave the building, for instance for fluorography, his head was covered with a sack and he was made to walk in an unnatural position (“a duck”- legs bent with hands behind the head). On 6 April 2005 the applicant was beaten for lying on his bed during the daytime when ill and on 29 June 2005 for refusing to assume the “duck” walking position. Each day the applicant was handcuffed and body-searched, being forced to stand barefoot on the concrete floor while the officers searched his shoes. 33. The applicant presented a handwritten statement of claim dated 14 June 2006 referring to the above conduct of the prison officers and addressed to the Shevchenkivskyy District Court of Kyiv. However, he did not provide any evidence that this statement was received by the court or even despatched from the penitentiary. 34. According to the Government, none of the incidents mentioned above concerning the applicant's ill-treatment at the hands of the penitentiary officers ever took place. 35. Article 55 of the Constitution of Ukraine, insofar as relevant, reads 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 bodies of State power, bodies of local self-government, 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.” 36. Article 248-1 of the Code (Chapter 31-A) provided in so far as relevant: “Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inactivity of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms ...” 37. Article 2 of the Code, insofar as relevant, reads as follows: “1. The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ... 2. Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...” 39. According to paragraph 14 of the Order, depending on the stage of the disease, HIV sufferers should have their count of CD-4 cells tested every one to six months. 40. According to paragraphs 2.1 and 2.3 of the Instruction, approved by the Order, medical assistance for HIV sufferers is viewed as comprising compulsory dispensary supervision, treatment of opportunistic diseases and access to antiretroviral therapy. In-patient treatment of patients with stage III-IV HIV suffering from active tuberculosis infections should be administered in prison hospitals specialising in the treatment of tuberculosis. 41. According to paragraph 6.1 of the Protocol, tuberculosis treatment was to be administered in specialised anti-tuberculosis institutions and to consist of two phases: basic chemotherapy and rehabilitation. The basic chemotherapy course consisted of intensive and supportive treatment stages with “first-line” anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin, ethambutol and pyrazinamide), or, in the event of resistance of the infection to the above drugs, with “second-line” or “reserve” antibiotics. 42. According to paragraph 6.6.1, to obtain maximal results, medical or surgical treatment was to be implemented in conjunction with a particular hygiene and exercise regime (complete bed rest, part-time bed rest or training regime) prescribed to an individual patient based on an assessment of his condition. 43. Treatment was to be followed by rehabilitation, including curative exercise, massage and physiotherapy, which was recommended to be started within two to two and a half months after the antibiotic treatment. 44. According to paragraph 6.6.4, within several months of starting treatment, a medical commission was to examine whether the intensive treatment stage could be substituted by the supportive stage based on x-ray and microbiological tests. If treatment appeared ineffective at this stage the patient was to be tested for drug resistance, and, if necessary, his case referred to a more qualified institution. In the event that chemical treatment remained ineffective, surgical intervention was to be explored as a possible alternative. 45. According to paragraph 6.6.4.3, it was recommended that antibiotic treatment be supplemented with anti-pathogenic medicines. 46. According to paragraph 6.7, tuberculosis patients were to be continuously monitored, which included x-rays every two months; blood (general and biochemical) and urine tests every month during the intensive therapy stage and once every two months during the supportive stage. 47. On 9 June 2006 Order no.45 was replaced with the Order no. 384 approving an updated Protocol; however, the major approaches remained the same. 48. According to the Protocol, patients co-infected with HIV and tuberculosis should predominantly be administered anti-tuberculosis therapy first, based on the same principles as for patients suffering from tuberculosis only. Under the general rule, antiretroviral therapy should be administered after the completion of the intensive anti-tuberculosis therapy stage, unless the level of CD-4 immunity cells is lower than a certain threshold, in which case antiretroviral therapy is administered immediately. On average, the level of CD-4 cells is expected to be tested once every three months. 49. Relevant parts of the Committee for the Prevention of Torture's report on its visit to Ukraine in 2005 read as follows: “ ... 115. Access to medical care in specialised facilities remains problematic for this category of prisoner, both male and female... Further, the transfer of life-sentenced prisoners suffering from tuberculosis to specialised medical penitentiary facilities was still not possible. Such persons were kept in their detention units, isolated in their cells, sometimes for many months. The CPT recalls that obliging prisoners to stay in an establishment where they cannot receive appropriate treatment due to a lack of suitable facilities or because such facilities refuse to admit them, is an unacceptable state of affairs which could amount to inhuman and degrading treatment. The CPT recommends that the Ukrainian authorities ensure that life sentenced prisoners – men and women – who require treatment in a specialised hospital facility can be transferred to such a facility without undue delay.” 50. Other relevant domestic and international materials can be found in the judgments in the cases of Melnik v. Ukraine (no. 72286/01, §§ 47-53, 28 March 2006), Yakovenko v. Ukraine (no. 15825/06, §§ 49-55, 25 October 2007) and Kats and Others v. Ukraine (no. 29971/04, §§ 85-86, 18 December 2008).