FIFTH SECTION

DECISION

Application no. 11898/20 Marko Anatoliyovych CHAUS

against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 April 2021 as a Committee composed of:

Stéphanie Mourou-Vikström , President, Jovan Ilievski , Mattias Guyomar, judges,

and Liv Tigerstedt , Deputy Section Registrar,

Having regard to the above application lodged on 4 March 2020,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marko Anatoliyovych Chaus , is a Ukrainian national, who was born in 1974 and is in detention.

The applicant was represented by Mr S.M. Rybiy , a lawyer practising in Dnipro.

The applicant ’ s complaints under Article 3 of the Convention concerning the inadequate medical treatment in detention were communicated to the Ukrainian Government (“the Government”).

The applicant is detained at the Poltava Penitentiary Institution no. 23 (“Poltava Penitentiary”) since 8 August 2019.

On 30 October 2019 the applicant was examined by a neurologist and diagnosed with posttraumatic encephalopathy, vegetative dysfunction, ataxia, left ear deafness, minor right ear deafness, syncopal seizure, cervical osteochondritis, and polyarticular pain syndrome. He was prescribed medication, which he stated would be provided by his family.

According to a letter from the medical unit of the Poltava Penitentiary of 1 November 2019, on 30 October 2019 the applicant was prescribed “constant medical care and regular inpatient rehabilitation treatment”.

On 14 November 2019 the applicant was examined by a general practitioner. At that time, he was apparently not provided with the prescribed medication by his family. He was offered substitute medication available at the medical unit. On the same day the applicant was offered to undergo inpatient treatment at the medical unit of the Poltava Penitentiary, which he refused in writing.

On 24 January 2020 the applicant ’ s attorney lodged a request with the investigative judge asking that the applicant be provided with adequate medical care.

On 27 January 2020 the Kyiv Local Court of Poltava refused the request since the applicant had failed to submit any evidence to prove that he had requested the penitentiary staff to provide him with such medical assistance or that such request had been refused by them. By final ruling of 17 February 2020, the Poltava Court of Appeal upheld the above decision.

On 5 March 2020 the applicant submitted a request under Rule 39 of the Rules of the Court asking the Court to indicate to the Government to provide him with adequate medical treatment in respect of his illnesses, particularly, to transfer him to a specialised medical institution and conduct complex medical examination and treatment.

On 2 April 2020 the Court refused the interim measure as it did not appear that the applicant ’ s state of health and life were at imminent risk.

On two occasions in May 2020 the applicant again refused the medication and inpatient treatment offered at the Poltava Penitentiary medical unit.

Subsequently, upon medical examinations carried out in July and September 2020, he repeatedly stated that he would be provided with prescribed medication by his family. However, the applicant was provided with relevant medication by the medical unit of the Poltava Penitentiary instead.

On 15 September 2020 the prosecutor ’ s office, having conducted an inquiry into the applicant ’ s complaints about inadequate medical treatment in the Poltava Penitentiary, found no violations in this regard. The prosecutor also noted that the applicant had not supported his complaint during the inquiry.

On 18 September 2020 the applicant was transferred to a civil hospital for a complex examination. No recommendation as to inpatient treatment was made.

On 29 September 2020, upon return from the civil hospital, the applicant ’ s state of health was confirmed as satisfactory and he was provided with substitute medication available at the medical unit of the Poltava Penitentiary.

THE LAW

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained about lack of adequate medical treatment in respect of his illnesses in detention. He invoked Article 3 of the Convention, which reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.”

The Government objected to admissibility of the complaints. In particular, they noted that the applicant had not lodged a civil claim seeking damages for the alleged failure to provide him with the relevant medical treatment. They further noted that the applicant ’ s state of health was satisfactory, he had been under continuous observation of the Poltava Penitentiary medical unit and had undergone numerous medical examinations. He had also been provided with the prescribed medications. They maintained that the above institution was capable of providing adequate medical care in respect of applicant ’ s medical conditions, referring to the findings of the inquiries conducted into the matter by the prosecutor ’ s office.

The applicant maintained his complaints and submitted that he had not received the treatment prescribed upon medical examinations carried out in October 2019, May and July 2020. He alleged that the domestic authorities had limited themselves to carrying out his medical examinations but had failed to provide him with adequate medical treatment. He remained silent as to his refusals to accept the offered treatment at the medical unit of the Poltava Penitentiary.

The Court notes at the outset that in the present case it is not necessary to examine whether the remedy suggested by the Government would have been effective, since the application is in any event inadmissible for the following reasons.

The Court reiterates that Article 3 of the Convention cannot be interpreted as securing to every detained person medical assistance of the same level as “in the best civilian clinics” (see Mirilashivili v. Russia ( dec. ), no. 6293/04, 10 July 2007). It has previously held that it was “prepared to accept that in principle the resources of medical facilities within the prison system are limited compared to those of civil[ ian ] clinics” (see Grishin v. Russia , no. 30983/02, § 76, 15 November 2007).

On the whole , the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia , no. 46468/06, § 140, 22 December 2008).

The Court observes that the applicant was regularly examined for his medical conditions and prescribed relevant treatment. However, he refused the offered medical treatment on three occasions and attested that he had no complaints in respect of the medical unit of the Poltava Penitentiary. Furthermore, on 18 September 2020 the applicant was admitted to a civil hospital for a series of specialised medical examinations and no inpatient medical treatment was recommended as a result.

As to the applicant ’ s statement that he had not been provided with medical treatment following three medical examinations carried out in October 2019, May and July 2020, the Court observes that only on two of those occasions was he prescribed such treatment, and on both of those occasions he attested that he would be provided with the required medication by his family, and he refused inpatient treatment.

Given all of the above, and having examined all the material before it, the Court finds that there is no indication in the present case that the applicant was not offered adequate medical care in prison.

Accordingly, the Court finds that these complaints are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 April 2021 .

Liv Tigerstedt Stéphanie Mourou-Vikström Deputy Registrar President