CASE OF OKHRIMENKO v. UKRAINE
Remainder inadmissible;No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);No violation of Art. 34;Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1968 and is currently detained in Kharkiv pre-trial detention centre No. 27 (Слідчий ізолятор № 27 м. Харкова – “the SIZO”), Ukraine. 6. On 14 March 2007 the applicant was arrested on suspicion of theft and inflicting grievous bodily harm causing the death of Mrs S. 7. On 16 March 2007 the Zmiyivskyy District Court authorised the applicant's pre-trial detention. The court indicated that the applicant was suspected of committing a serious crime, had been previously convicted on many occasions, had had negative character assessments, drank excessively and did not work. Therefore, the court was of the opinion that the applicant might abscond, commit other crimes or hinder the investigation. The applicant did not appeal against this decision. 8. On 10 May 2007, on completion of the preliminary investigation, the applicant's criminal case was sent to the court. 9. On 25 June 2007 the Zmiyivskyy District Court rejected the applicant's request for release. The parties did not submit a copy of this decision. 10. On 28 March 2007 (in some submissions the applicant refers to 23 March 2007) the applicant was placed in the SIZO. The applicant stated that he had requested his release as he was suffering from cancer. 11. Immediately on his arrival, the applicant complained about his health problems but was examined and diagnosed only a month later. 12. In April 2007 the applicant was diagnosed with liver cirrhosis and advanced cancer of the left kidney with metastasis in the lungs. The applicant received symptomatic treatment including the use of narcotic analgesics but, according to him, the quantity of analgesics was not sufficient given the advanced stage of his cancer. 13. On 26 July 2007 the Zmiyivskyy District Court ordered a medical examination of the applicant in order to establish the severity of his condition. The applicant was not provided with any medical treatment. 14. From 9 to 17 August 2007 the medical examination of the applicant took place, confirming the previous diagnosis. 15. The applicant's representative in the criminal proceedings, allegedly Mr Kh., lodged numerous requests with the court for the applicant to be released in view of his serious state of health, but to no avail. No copies of these requests or the court's refusals were submitted by the applicant. 16. On several occasions – at least four times – the applicant was escorted to court hearings which took place about 50 kilometres away from the SIZO. The applicant stated that the conditions in which he was transported, given his serious state of health, had caused him extensive suffering. In particular, he had to wait in a room measuring one square metre for the arrival of the prison van. The trip lasted approximately two hours and the applicant was not fed or provided with any medical assistance. The applicant stated that any movement had been painful for him and that being transported to the courthouse had caused him severe distress; on the last two occasions his health had seriously deteriorated as a result. 17. From 15 to 28 March 2007 the applicant stayed in Zmiyivska Central Hospital, where he received treatment for an injury to the left hand, lymphangitis (an inflammation of the lymphatic channels) of his left arm and pneumonia. 18. On 28 March 2007 the applicant was placed in the SIZO. 19. On arrival at the SIZO the applicant complained about headaches and pain in the right part of his chest. On the next day he was diagnosed with pneumonia and placed in the hospital wing of the SIZO. However, on 2 April 2007 he was transferred to Kharkiv City Clinic (Міська клінічна лікарня № 1 м. Харкова) where he stayed until 20 April 2007. During his stay in the clinic, the applicant was diagnosed with cancer. 20. On 6 and 12 April 2007 the applicant was examined in Kharkiv Oncology Hospital (Харківський обласний клінічний онкологічний диспансер) and diagnosed with cancer of the left kidney. On his discharge from the hospital he was prescribed symptomatic treatment. 21. On 20 April 2007 the applicant was returned to the SIZO. He was diagnosed with advanced cancer with metastasis, chronic hepatitis and vasculitis (a heterogeneous group of disorders that are characterised by inflammatory destruction of blood vessels) and placed in the hospital wing, where he stayed until 18 May 2007. 22. Since April 2007 the SIZO authorities have several times requested the Ministry of Internal Affairs and the Zmiyivskyy District Court to accelerate the proceedings in the applicant's case or to order the applicant's release but, apparently, to no avail. No copies of such requests or decisions taken in respect of them have been provided to this Court. 23. The applicant also stayed in the hospital wing of the SIZO from 6 to 20 June, 13 to 20 July and 31 July to 11 December 2007. 24. Between June and August 2007 the applicant frequently complained of pains in the left side of his body. He was prescribed some painkillers, antibiotics and vitamins. 25. On 4 July 2007 the applicant lodged a written request to participate in a court hearing scheduled for 5 October 2007. 26. On 26 July 2007 the Zmiyivskyy District Court, which was considering the applicant's criminal case, ordered the medical examination of the applicant. 27. From 2 August to 11 September 2007 the applicant constantly had a high body temperature (38-39o). His medical file contains a reference to a telephone conversation of 8 August 2007 during which the head doctor of Kharkiv Oncology Hospital refused to admit the applicant since “according to the medical findings of 12 April 2007, the applicant could not undergo surgery”. The applicant's condition was described as of “medium severity” (“середньої тяжкості”). 28. Between September and October 2007 the applicant's condition remained serious; however, he had no fever and his body temperature was normal. 29. On 5 and 12 October 2007 the applicant participated in court hearings. 30. On 5 October 2007 the applicant was examined by a doctor from Zmiyivska Central Hospital. The applicant requested a prescription for morphine injections. 31. On 24 October 2007 the Kharkiv City health department was requested to assist the SIZO in providing pain relief since the SIZO was not entitled to buy narcotic analgesics. 32. On 25 October 2007 the applicant underwent an examination in Kharkiv Oncology Hospital. 33. Since 1 November 2007 the applicant has been receiving morphine injections. 34. On 5 November 2007 the applicant participated in a court hearing. A doctor was called into the hearing but the applicant refused to be examined. The doctor concluded that, judging from the applicant's appearance, he could participate in a court hearing, but recommended further diagnostic tests in a specialised hospital. By a separate ruling the court decided to make enquiries with the SIZO about the applicant's state of health since “he could not participate in a court hearing after the morphine injections and refused to participate without having them”. 35. On 8 November 2007 the applicant was examined by a doctor from Kharkiv City Hospital, who recommended the use of morphine twice a day. 36. On 12 November 2007 the applicant refused blood and urine tests and requested an increase in his morphine injections. 37. On an unspecified date in November 2007 the applicant requested his transfer to a civil hospital, a course of chemotherapy and an increase in his morphine injections. He was refused on the ground that “the oncologist had not prescribed such treatment”. The applicant, however, refused further diagnosis. 38. On 21 November 2007 the applicant participated in a court hearing and was assisted by a medical professional. 39. On 23 November 2007 the applicant again refused to submit to a blood test. 40. On 30 November 2007 the applicant was examined in Kharkiv Oncology Hospital. A biopsy was prescribed, as well as analgesics. According to the Government, the applicant refused to undergo a biopsy. 41. On 5 December 2007 the Governor of the SIZO hospital wing informed the court that, given the applicant's diagnosis, his state of health was serious; he could, however, participate in the court hearings. 42. On 6 December 2007 the applicant participated in a court hearing. 43. On 11 December 2007, following the applicant's request for Rule 39 of the Rules of Court to be applied, the President of the Fifth Section of this Court decided that the Government of Ukraine should ensure that the applicant was transferred to a hospital or other medical institution where he could receive the appropriate treatment. 44. On the same day the applicant was transferred to Kharkiv Oncology Hospital. On admission he was diagnosed with cancer of the kidney (hypernephroma) in the advanced stage (T3-4 N1M1). 45. By a letter of 14 December 2007 the head doctor of Kharkiv Oncology Hospital informed the Governor of the SIZO that on 11 and 13 December 2007 the applicant had refused any diagnostic tests and requested that the prosecutor and a representative of the Kharkiv Human Rights Group be present during his examination. The applicant explained his refusal to give blood tests by saying that he “wanted to live”. The hospital personnel also complained to the hospital management that the applicant had sworn at them and insisted that they leave his ward. The head doctor stated that in the absence of any diagnosis it was not appropriate for the applicant to stay in a specialised hospital. Later, allegedly following the intervention of the applicant's lawyer, the applicant agreed to further examination. The doctors decided that the applicant should undergo a biopsy and that in the event of confirmation of the diagnosis surgery should be performed. After several refusals the applicant finally agreed to a biopsy and surgery. 46. On 24 December 2007 the court proceedings in the applicant's case were stayed because of the applicant's illness. 47. According to the applicant, from 11 December 2007 until, at the earliest, 19 September 2008, he was handcuffed to his bed. By letter of 27 December 2007 the applicant's lawyer informed this Court that he had complained about this matter to the Governor of the SIZO. 48. By a letter of 8 January 2008 the Zmiyivskyy District Court rejected Mr Kristenko's request for information concerning the applications for the applicant's release and all court decisions taken in response to those applications, since Mr Kristenko had not submitted a proper power of attorney. 49. On 11 January 2008 the applicant underwent surgery. Afterwards he continued to receive morphine injections. 50. On 23 January 2008 the applicant was diagnosed with cancer of the kidney (hypernephroma), stage T3N0M0 2/2 clinical group. 51. By a letter of 23 January 2008 the deputy head doctor of Kharkiv Oncology Hospital requested the Governor of the SIZO to remove the applicant since there was no further need for him to stay in a specialised hospital and he was currently occupying a four-bed ward as he was being guarded by three SIZO officers. 52. On 1 February 2008 the authorities of the SIZO requested the Kharkiv health department and the Kharkiv regional prosecutor's office to admit the applicant to the radiotherapy department of the Oncology Hospital since the SIZO did not have the proper equipment and personnel for the applicant's further treatment. 53. From 4 to 17 February 2008 the applicant underwent radiotherapy. Subsequently he refused to continue it. 54. By letters of 19 and 27 February 2008 the deputy chief doctor of Kharkiv Oncology Hospital informed the Governor of the SIZO that the applicant had to be discharged from the hospital since he had refused to undergo radiotherapy, and the place in the hospital was expensive and was needed by other patients. 55. On 29 February 2008 the applicant was examined by a panel of doctors who concluded that his state of health was satisfactory and that he could be discharged from the hospital but placed under the supervision of an oncologist. 56. On 29 July 2008 the Zmiyivskyy District Court resumed proceedings in the applicant's case. The court considered the request by the applicant's lawyer (Mr Kh.) to release the applicant and rejected it. The court noted that the applicant was accused of committing a serious crime. The prosecutor and the victims, S. and Ya., objected to the applicant's release. In particular, S. stated that the applicant, while in detention, had written letters in which he had threatened her son and promised to pay him to change his testimonies and to incriminate another person, M. The applicant had never been employed, had no means of supporting himself and did not maintain any ties with his relatives. 57. By letter of 12 September 2008 the hospital informed the Governor of the SIZO that the applicant was suffering from cancer of the left kidney (medium stage) but did not need hospital treatment and could be held in the SIZO. 58. On 7 October 2008 the applicant was returned to the SIZO. 59. On 20 November 2008 the President of the Fifth Section reconsidered the present application and decided to lift the interim measure previously indicated on 11 December 2007 under Rule 39 of the Rules of Court. 60. The relevant extracts from the Constitution read as follows: “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” “Human and citizens' rights and freedoms shall be protected by the courts. Everyone is guaranteed the right to challenge in a court the decisions, actions or omissions of bodies exercising State power, local self-governing bodies, officials or officers. ...After exhausting all domestic legal remedies, everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” “If a defendant ... is suffering from a mental or other serious long-term illness which makes further consideration of the case impossible, the court shall stay proceedings in the case until the defendant's recovery...” 61. Section 18 of the Act sets out rules governing the use of security measures including the use of handcuffs. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs, truncheons, etc., with a view to putting an end to physical resistance, violence, outrage (безчинства) and opposition to the lawful directions of the authorities of the detention facility, when other means of achieving a legitimate objective prove ineffective.should be carried out so as to inflict as little injury as possible. Those persons against whom security measures have been used should undergo a medical examination.