CASE OF YAROVENKO v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No 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) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
André Potocki;Ganna Yudkivska;Síofra O’Leary
6. The applicant was born in 1975. As of October 2013, he was serving a life sentence in Kherson Prison no. 61. On 21 March 2014 his representative informed the Court about the applicant’s new address, which was Lugansk Pre-Trial Detention Centre (SIZO), without any further details. 7. On 24 (or 25 according to the Government) September 2004 the applicant was arrested on suspicion of robbery and murder. According to the applicant, the police subjected him to various forms of ill-treatment following his arrest. 8. On 23 November 2005 the Court of Appeal of the Autonomous Republic of Crimea, sitting as a court of first instance, found the applicant guilty of aggravated robbery, two counts of murder, and unlawful possession of firearms. The court sentenced him to life imprisonment with confiscation of property. 9. The applicant appealed on points of law. 10. On 20 April 2006 the Supreme Court upheld the judgment of the first-instance court. 11. The applicant was detained in the following detention facilities: the Simferopol Temporary Detention Facility (“the Simferopol ITT”, a part of the police system): from 25 September to 26 October and from 4 to 19 November 2004 (during the intervening period from 26 October to 4 November 2004 the applicant was undergoing a forensic psychiatric examination in a psychiatric hospital); the Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”): from 19 November 2004 to 16 March 2006 and from 2 May to 18 October 2006; the Dnipropetrovsk SIZO: from 17 March to 6 April, from 25 April to 1 May and from 19 to 29 October 2006; the Kyiv SIZO: from 7 to 25 April 2006 (that is during the time when the applicant’s case was examined by the Supreme Court); the Odessa SIZO: from 30 October to 4 November 2006 (the applicant raised no complaints in respect of his detention there); and Kherson Prison no. 61: from 4 November 2006 onwards. 12. The applicant did not specify the cells in which he had been detained. According to him, he was held in an overcrowded, cold and damp cell located in a basement and lacking fresh air and sufficient daylight. He also alleged that he had not been provided with any bed linen. Furthermore, he was allegedly deprived of access to shower and had no facilities for shaving. Nor could he enjoy any outdoor walks. The nutrition was allegedly very poor and did not correspond to the applicant’s needs given his health condition. 13. The applicant further submitted that, although he was suffering from active tuberculosis, he had had to share his cell with healthy inmates, which had provoked conflicts. 14. According to the applicant, when he was transferred back to the ITT on 4 November 2004 after his forensic psychiatric examination, the temperature in his cell was very low. Nonetheless, the ITT administration withheld his warm clothes. As a result, the applicant allegedly caught bronchitis and pneumonia. 15. The Government submitted that they were not able to provide details as to the specific cells, in which the applicant had been detained, because the relevant records had been destroyed with the passage of the envisaged period of their storage. The Government therefore provided information about all the cells of the Simferopol ITT based on the information note issued by the ITT’s governor on 11 December 2012. 16. As specified in that information note, the ITT had nine cells able to accommodate up to forty-two inmates. Seven of those cells were identical: each of them measured 10 sq. m. and was designated for four persons. The eighth cell measured 13 sq. m. and accommodated two inmates. And, lastly, there was a bigger cell, measuring 21 sq. metres, which was designated for eight persons. 17. All the cells were located in a semi-basement. Each of them had a window and was equipped with a forced ventilation system. 18. The cells had beds for each inmate, a table, a lavatory and a washstand with centralised water supply. There was also centralised heating in the ITT functioning during the cold season (end of autumn, winter and beginning of spring). 19. According to the Government, the inmates were provided with all the required bed linen in the ITT. 20. According to the information note issued by the governor of the Simferopol SIZO on 29 November 2012 at the request of the Government’s Agent, the applicant was detained in the following cells: from 19 November 2004 to 18 March 2005 and from 22 April to 23 November 2005 – in cell no. 101; from 18 March to 22 April 2005 – in cell no. 105; from 23 to 25 November 2005 – in cell no. 69; from 24 November 2005 to 16 March 2006, from 30 June to 7 July 2006 and from 14 to 21 July 2006 – in cell no. 72; and from 23 to 30 June, from 7 to 14 July and from 21 July to 18 October 2006 – in cell no. 70. 21. Cells nos. 101 and 105 were ordinary cells, which the applicant shared with two other inmates for most of the time. According to the applicant, however, starting from 29 June 2005 his cell-mates were transferred to other cells and he remained alone in cell no. 101. Cells nos. 69, 70 and 72 belonged to the maximum security unit and the applicant was in solitary confinement there. 22. The case file contains a copy of the SIZO governor’s decision of 24 November 2005 about the applicant’s placement in a separate cell of the maximum security unit on the ground of the prevention of the spread of tuberculosis (the applicant was then diagnosed with active tuberculosis). 23. Given that in 2007 the numbering of the SIZO cells had been changed, the Government found it impossible to locate with precision each cell, in which the applicant had been detained. They, however, submitted that all the cells of the same category (ordinary or maximum security) had the same characteristics. 24. According to the information provided by the Government, each of the cells had a double-glazed window enabling natural ventilation and penetration of daylight. All the cells were equipped with ventilating equipment, water supply and sewerage, as well centralised heating. There was all the required furniture in the cells. 25. According to the applicant, his cells were cold and damp. The window in cell no. 101 was allegedly not glazed and the inmates had to cover it with blankets and plastic bags. 26. The maximum security cells were allegedly very small and had poor lighting and ventilation. The applicant also submitted that the toilet had not been separated from the living area and smelled of excrement. There was no hot water supply and cold water was supplied irregularly. 27. Furthermore, the nutrition was allegedly very basic often being limited to bread, porridge and soup with sour cabbage. According to the Government, however, the nutrition for the detainees had been in accordance with the applicable legal requirements. 28. Lastly, the applicant submitted that the special “life prisoner” uniform had been too small for him, which had caused him discomfort and had provoked mockery by other inmates. The Government noted, without further details, that wearing a special uniform was a legal requirement. 29. According to the applicant, he was detained in a solitary cell measuring 1.7 by 3 metres in a semi-basement. It had a concrete floor and was equipped with a bench, which was also made of concrete. The light in the cell was very poor. The toilet was not separated from the rest of the cell. 30. The Government did not make any submissions in respect of the conditions of the applicant’s detention in the Dnipropetrovsk SIZO. 31. The applicant was held in a solitary cell, in allegedly poor conditions. Furthermore, he was allegedly denied the opportunity to use the common shower facilities. Instead, on 12 and 19 April 2006 he was locked for an hour in a small room equipped with a cold-water tap on the level of his stomach. As the temperature inside was very low, he preferred not to wash himself. The applicant had therefore no access to warm shower for the entire period of his detention in the Kyiv SIZO (from 7 to 25 April 2006). 32. The Government did not comment on this period of the applicant’s detention. 33. The applicant, being a life prisoner, was transferred from one cell to another every ten days. According to him, all the cells, in which he had been detained (he mentioned, in particular, cells nos. 8, 10, 11 and 14) were damp and cold. In some of them, the walls were covered with mold and fungus. 34. Furthermore, the prison cells allegedly lacked sufficient daylight and fresh air. They were not ventilated artificially and the only access to fresh air was through a window, which could not be opened wider than five centimetres. The applicant also submitted that the windows were closed during the inmates’ daily outdoor walks, as the cells were then being disinfected by ultraviolet germicidal irradiation lamps. 35. The applicant specified the size and population of only two cells: cell no. 8 measured 21 sq. m. and was shared by four inmates; and cell no. 14 measured about 15 sq. m. and accommodated three inmates. 36. During the period from May 2007 to December 2010 there were major repairs in the prison, which had allegedly caused the applicant such inconveniences as having to bear with a high level of noise and inhaling construction dust and paint smells. 37. The applicant further submitted that the yard for outdoor walks (which lasted two hours per day) had no shelter to protect detainees from rain or sun. 38. According to the Government, the conditions of detention in the prison were in compliance with the standards established by the Court. 39. On 17 October 2012 an official of the Kherson City Prosecutor’s Office in charge of the supervision of lawfulness in penitentiaries, a representative of the Association of Ukrainian human rights monitors in law-enforcement institutions, as well as the governor and the deputy governor of the prison, conducted “a monitoring visit” of the prison. According to their report, all the maximum security cells were located below the ground level and were damp. Cell no. 8 (in which the applicant was detained at the time) measured 21 sq. m. and accommodated four inmates. It had sufficient daylight and artificial light. It was, however, impossible for inmates to switch on/off the light or to regulate its brightness. The cell had natural ventilation and the window could be opened from inside. There was centralised heating, but at the time of the visit the weather was warm and the heating was off. The toilet was separated from the living area. There was a washstand, but the water tap was leaking. There were minor flood traces on the ceiling, which the administration explained by a recent accident. 40. On an unspecified date in October 2012 the deputy governor of the prison issued an information note about the conditions of detention in that prison at the request of the Government’s Agent. It stated, in particular, that cell no. 8 had a window of 1.3 by 1.1 metres, one 220V lamp and one night watch light (36V). The prison official also stated that between May 2007 and December 2010 the maximum security unit of the prison had undergone major refurbishments. In October 2012 some minor repairs were carried out in cell no. 8. 41. The Government submitted four photographs of cell no. 8, showing a spacious and light room in a visually good state of repair. According to the applicant, those photographs had been taken after his detention in that cell and were of no relevance for his case. 42. According to the information provided by the Government, the prison cells were disinfected on a daily basis during the detainees’ outdoor walks. The applicant noted that this did not happen when inmates chose not to go for a walk because of poor weather conditions. 43. As further submitted by the Government, cells for smear-positive and smear-negative inmates were located on different floors and had separate shower facilities, X-ray examination rooms and walking yards. The applicant specified that it had not been so before October 2012. 44. Prior to his detention the applicant had been suffering from chronic hepatitis, neurocirculatory asthenia, varicose veins, and astigmatism of both eyes. It is not known whether he had undergone any medical treatment in that connection. 45. Furthermore, in 1995 the applicant was diagnosed with tuberculosis for the first time. In November 2001 his tuberculosis disease was considered to have developed in a chronic form. 46. On 30 November 2001 the applicant was admitted for inpatient treatment to the Zaporizhzhya regional tuberculosis dispensary. 47. On 22 February 2002 he was discharged from it on the ground of his refusal from the treatment and his continued absence. 48. On 18 March 2002 the applicant was re-admitted to the aforementioned dispensary for treatment. 49. On 30 April 2002 he was discharged on the ground of his persistent breaches of the treatment regimen and the dispensary’s rules. 50. According to an information note issued by the dispensary’s chief doctor at the request of the applicant’s lawyer on 24 April 2013, during his treatment there in 2002 the applicant had been administered anti-tuberculosis medicines of the first and the second lines. 51. On 26 May 2003 the applicant was recognised as falling within the third category of disability (the mildest) on account of his tuberculosis disease. 52. On 25 September 2004 the applicant underwent a medical examination upon his admission to the Simferopol ITT. As recorded in the ITT’s journal, the applicant informed the doctor about his tuberculosis disease, but did not raise any complaints. 53. On 11 October 2004 the ITT governor wrote to the Simferopol prosecutor that, according to the conclusion of a tuberculosis specialist of the same date, the applicant was suffering from an active form of tuberculosis and required further examination and inpatient treatment in a hospital environment. At the time of writing he was, however, detained in the ITT as an ordinary detainee. The ITT governor requested the prosecutor to help in organising the applicant’s transfer to a tuberculosis dispensary. It appears that there was no follow up to that request. 54. On 26 October 2004, upon the applicant’s admission to the psychiatric hospital for his forensic psychiatric examination, a tuberculosis specialist examined him. The applicant complained of coughing with purulent sputum, general weakness, breathlessness and a considerable loss of weight. He was diagnosed with active fibrous-cavernous pulmonary tuberculosis at the stage of infiltration and was prescribed isoniazid, rifampicin, pyrazinamide, ethambutol, streptomycin and some other medications and vitamins. 55. On 1 November 2004, while still in the psychiatric hospital, the applicant was X-rayed and repeatedly examined by a tuberculosis specialist. The doctor confirmed the earlier diagnosis and recommended the continuation of the medicinal treatment, subsequent monitoring of the applicant’s condition and his isolation. 56. On 4 November 2004 the applicant was transferred back to the Simferopol ITT. According to him, his medical treatment for tuberculosis was disrupted at that point. 57. On 19 November 2004, following the applicant’s transfer to the Simferopol SIZO, a panel of doctors, including a tuberculosis specialist, examined him. He was prescribed with: isoniazid, rifampicin, pyrazinamide, ethambutol and streptomycin – for an intensive treatment phase (for the periods from 19 November 2004 to 28 February 2005, from 1 August to 30 November 2005 and from 2 May to 30 August 2006) and isoniazid, rifampicin and pyrazinamide – for a follow-up treatment phase (for the periods from 1 March to 31 July 2005, from 1 December 2005 to 16 March 2006 and from 1 September to 13 October 2006). 58. According to the applicant’s medical file, he was provided with the prescribed medications on a daily basis. Furthermore, during his detention in the Simferopol SIZO the applicant was examined by a tuberculosis specialist and underwent sputum smear testing on a monthly basis. He also had regular chest X-ray examinations. The applicant’s diagnosis remained the same and his X-raying showed no changes in the state of his lungs. The applicant’s medical file pertaining to his pre-trial detention contains no reference to his drug susceptibility test. 59. The applicant complained to various authorities, in particular, about his solitary confinement, which he did not consider to be justified on medical grounds. On 8 September 2005 an official of the regional office of the State Department for the Enforcement of Sentences wrote to the applicant that he was the only detainee suffering from an active form of tuberculosis and his isolation was justified. He was receiving regular medical treatment. Furthermore, as stated in the letter, he had undergone drug susceptibility testing carried out with the participation of the Simferopol city tuberculosis dispensary. 60. On 18 October 2006 the applicant was transferred from the Simferopol SIZO to Kherson Prison no. 61. 61. On 4 November 2006 the applicant arrived in Kherson Prison no. 61 having the status of a penitentiary tuberculosis hospital (before his arrival in the prison he had been detained in the Dnipropetrovsk and Odessa SIZOs (see paragraph 11 above), where he allegedly received no medical treatment). 62. Immediately after the applicant’s arrival in the prison, a panel of doctors examined him and diagnosed him with: chronic pulmonary tuberculosis, chronic hepatitis in an aggravation phase, neurocirculatory asthenia, varicose veins, and astigmatism of both eyes. He was placed in the prison’s medical unit for inpatient treatment. 63. On 28 November 2006, following the applicant’s complaint about heartache, weakness and loss of appetite, he was examined by a general practitioner who diagnosed him with chronic hepatitis in an aggravation phase and neurocirculatory asthenia of cardiac type. The doctor prescribed some medications to the applicant and recommended that he undergo an electrocardiogram. It appears that the above recommendation had not been implemented. As the applicant continued raising the same complaints, a general practitioner again examined him on 15 January and 6 June 2007. He confirmed the earlier diagnoses and prescribed medications. 64. Furthermore, in December 2006, April 2007, January 2008 and March 2009, as well as in May and July 2011, an ophthalmologist diagnosed the applicant with astigmatism of both eyes and prescribed eyeglasses for him. It is not known whether the applicant received the eyeglasses according to the prescription. 65. The applicant’s chest X-raying in January 2007 (the exact date is illegible) showed that his tuberculosis disease was progressing. 66. On 20 February 2007 the applicant underwent a drug susceptibility test, which established that he was resistant to isoniazid, rifampicin, pyrazinamide, ethambutol and streptomycin. His treatment was therefore corrected and he was prescribed different medicines (such as kanamycin, ethambutol, para-aminosalicylic acid, ciprofloxacin and ofloxacin). 67. On 27 April 2007, 24 April 2008, 30 April 2010 and 27 May 2011 the applicant was recognised as falling into the second category of disability on account of his tuberculosis disease (for a period of one or two years, with his condition to be reassessed thereafter). 68. On 15 April 2008 the applicant’s X-raying showed negative developments in his lungs. 69. His subsequent X-ray examinations on 3 and 28 October 2008 indicated that his condition “was becoming stable”. Accordingly, the applicant’s treatment was changed from inpatient to outpatient. 70. In March 2009 his tuberculosis disease progressed again. As a result, on 13 March 2009 he was referred again to the prison’s medical unit for inpatient treatment. 71. On 13 April, 28 July and 28 September 2009 the applicant refused to take the anti-tuberculous medicines. 72. On 5 May and 15 September 2009 he also refused from X-raying. 73. On 14 June, 14 July, 19 August, 8 October and 10 November 2009 the applicant refused that his blood samples be taken for analysis. 74. On 20 April and 29 December 2010 the applicant underwent further X-ray examinations of his chest, which showed no changes in his lungs. 75. On 26 January 2011 a neurologist diagnosed the applicant with cervical spine osteochondrosis and recommended him to put a hard surface (something like a wood shield) beneath his matrass. According to the applicant, the prison administration did not allow him to do that. 76. On 15 March and 15 September 2011 the applicant refused to take the anti-tuberculous medicines. 77. On 29 March, 5 July, 8 September and 11 October 2011 his X-raying showed no changes in his condition. 78. As indicated in the applicant’s medical records, on 28 October 2011 his treatment was corrected. He was prescribed with: pyrazinamide, para-aminosalicylic acid, capreomycin, ofloxacin and cycloserine. 79. On 30 January, 4 May and 13 November 2012 the applicant had his chest X-rayed again. Like before, no changes in his lungs were reported. 80. On 10 May 2012 the applicant agreed in writing to palliative care. He wrote that he was aware of the reasons and consequences of that decision and that he had taken it without any pressure. 81. On 14 September 2012 the prison administration wrote a letter to the applicant’s mother in reply to her complaint, in particular, regarding his medical care. The prison governor stated that the applicant’s treatment for tuberculosis had been without effect for a long period of time, as he had developed multi-resistance to all possible anti-tuberculosis drugs. Accordingly, it had been proposed to the applicant that his treatment be confined to palliative care and he had accepted that proposal. It was explained in the letter that the palliative care consisted of the administration of two anti-tuberculosis drugs of the first line (isoniazid and rifampicin) regardless of the applicant’s resistance to them. As rifampicin was not available in the prison, it had been replaced with ethambutol. Lastly, the prison official wrote that the palliative care had been prescribed to the applicant for life. 82. On 27 September 2012 the National Institute of Tuberculosis Studies and Pulmonology, to which the applicant’s mother had also complained about his medical treatment in detention, responded to her. The director of the Institute wrote that, as it appeared from the medical file, the applicant’s tuberculosis disease had become incurable. Accordingly, the prospects of its treatment were deplorable regardless of the place of that treatment. Lastly, as noted in the letter, it was open for the applicant to apply for release on the ground of his incurable infectious disease. 83. As confirmed by a record in the applicant’s file of 16 November 2012, his X-ray examinations had not shown any positive changes in the state of his lungs since 2008. More specifically, the lung cavities were not disappearing. 84. On 7 December 2012 the prison doctors recommended to continue the applicant’s inpatient treatment according to the prescribed regimen. 85. There is no information in the case file regarding the applicant’s health condition and treatment thereafter. 86. On 11 June 2006 the applicant sent his first letter to the Court, in which he complained, in particular, about the physical conditions of his detention and the lack of adequate medical care. 87. On 20 June 2006 the Registry sent him an application form and accompanying explanatory documents and instructed him to submit a duly completed and signed application form within six weeks from the date of receipt of the Court’s letter. 88. In October 2006 the Court received several copies of the completed application form from the applicant, in which he elaborated, in particular, on the complaints, which he had outlined in his initial letter to the Court, including about the conditions of his detention in the Simferopol, Dnipropetrovsk and Kyiv SIZOs. According to him (and confirmed by his three cell-mates), he had attempted to send his application form on 30 August 2006, but the administration of the Simferopol SIZO had refused to dispatch it unless he deleted any complaints about his conditions of detention there. The applicant also submitted that the domestic courts had rejected his requests for access to some documents in his case file, which he intended to enclose to his application form, on the ground that he had already received copies of those documents, which was confirmed by his signature. Furthermore, the administration of the Simferopol SIZO allegedly refused to produce copies of some documents at the applicant’s request. 89. On 1 February 2012 the applicant sent a letter to the Court supplementing his application form with a complaint about poor physical conditions of detention and inadequate medical care in the Kherson prison.