FOURTH SECTION

DECISION

Application no. 51651/10 Volodymyr Mykolayovych ORYEKHOV against Ukraine

The European Court of Human Rights (Fourth Section), sitting on 26 March 2019 as a Committee composed of:

Georges Ravarani, President, Marko Bošnjak , Péter Paczolay , judges and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 30 August 2010,

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

1. The applicant, Mr Volodymyr Mykolayovych Oryekhov , is a Ukrainian national, who was born in 1987. His current whereabouts are unknown. At the time of the events in question the applicant was in pre-trial and then post-conviction detention. According to the case file, his imprisonment was due to end on 30 April 2015. At the notification stage of the proceedings, the applicant was represented by Ms Olena Ashchenko , a lawyer practising in Kharkiv .

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

4. On 9 February 2008 the applicant robbed a man in a street of Novovolynsk , in the Volyn Region. Criminal proceedings were opened against him and he was put on a wanted list.

5. On 9 March 2009 the applicant moved from Novovolynsk to Zasillya village, in the Mykolayiv Region, to work at a factory. The applicant lived at a friend ’ s flat.

2. Alleged events of 27 and 28 April 2009

(a) The applicant ’ s account

6. On the evening of 27 April 2009, on his way to a shop in Zasillya village, the applicant was stopped by police officers. They asked the applicant about his current place of residence and let him go. On his way back from the shop, the applicant noticed the same police officers together with two young men. When he walked further along the street, the two men approached him and started beating him. The applicant fell to the ground but the men continued to kick him. The men took money and two mobile phones from the applicant and disappeared. The applicant returned to the shop, explained to the seller what had happened to him, and asked him to call an ambulance. He lost consciousness and came round in the hospital. The hospital reported the incident to the police.

7. Allegedly, at 11 a.m. on 28 April 2009, the police visited the applicant at his friend ’ s flat to enquire about the incident. The applicant identified one of the police officers who had talked to him the day before and said that that police officer had also spoken to the attackers before the incident. The police then asked him to follow them to the police station. Instead, they took him to an abandoned building, walked up to the second floor and suggested that he might like to think over his statements and consider whether it was really necessary to complain about the incident. The applicant insisted that he wished to complain to the authorities. The police officers then started beating him. At a certain point in time the applicant was roughly pushed against a window. As a result, he broke through it and fell out into the street. The applicant lost consciousness and came round in hospital.

8. According to a medical certificate of 16 February 2010, at the hospital the applicant was diagnosed with concussion, injuries to the right side of his forearm, fractures of both heel bones and an injury to his lumbar vertebrae.

9. The applicant ’ s complaints concerning these events were unsuccessful.

(b) The Government ’ s account

10. On 28 April 2009 the local police office received notification from a local hospital that it had admitted the applicant and diagnosed him with concussion , contusions and bruises on the right part of his forehead.

11 . On 29 April 2009 in order to escape from police officers, who had arrived at the hospital to question him about the events that had happened a day earlier, the applicant jumped out of a window on the second floor of the neurosurgical unit of the hospital. As a result, the applicant sustained concussion, injuries to the right side of his forearm, fractures of both heel bones and an injury to his lumbar vertebrae.

12 . On 30 April 2009 following an inquiry, the police found that the applicant had sustained his initial injuries on 27 April 2009 through his own carelessness when returning home from a bar. The police refused to institute criminal proceedings, owing to the absence of a crime. This decision was not challenged.

13. The case file contains a copy of a certificate issued by the Pervomaysk hospital stating that at 12.45 a.m. on 28 April 2009 an ambulance team diagnosed the applicant with concussion, contusions and bruises on the right part of his forehead, and confirmed that he was in a state of alcoholic intoxication and provided him with relevant treatment. The certificate also states that the applicant refused hospitalisation . At 1 p.m. on the same day an ambulance was again called out to the applicant. Having received primary medical care, he was taken to the Mykolayiv Emergency Hospital, having been diagnosed with concussion.

3. Criminal proceedings against the applicant

14. On 30 April 2009 the Novovolynsk Town Court placed the applicant in pre-trial detention on charges of robbery.

15. On 22 June 2009 that court found the applicant guilty of robbery and sentenced him to six years ’ imprisonment. The court also ordered that the applicant should pay 5,162.40 Ukrainian hyrvnias to the victim of the crime, by way of damages. The judgment was based on oral, documentary and physical evidence, including a confession by the applicant during the trial.

16. On 15 September 2009 and 3 February 2010 the Volyn Region Court of Appeal and the Supreme Court, respectively, upheld the judgment of the first-instance court. The applicant did not provide the Court with a copy of the decision of the Supreme Court.

4. Medical treatment of the applicant and special assistance provided to him while in detention

17 . From 30 April to 5 May 2009 the applicant was held in the Novovolynsk Temporary Detention Centre (“the ITT”).

18 . On 30 April 2009 the applicant consulted a surgeon, a traumatologist and a neurosurgeon. The applicant was prescribed medicines and it was recommended that he have elective surgery. The medical condition of the applicant was not established during the above-mentioned consultations.

19. According to the applicant, during his detention in the ITT the staff had not provided him with the requisite assistance despite knowing that he could not walk by himself as his legs had been in plaster. In particular, he had had to wait for two hours for an officer to come and help him go to the toilet. He had not even been able to get to the cell door where the food had been served. For the same reasons he had been unable to wash himself. On several occasions an ambulance had had to be called to give him painkillers.

20. On 3 May 2009 he complained to the prosecutor of a lack of medical treatment and special assistance, but allegedly to no avail.

21. From 5 May to 27 September and from 27 November to 27 December 2009 the applicant was held in the Lutsk pre-trial detention centre (“the SIZO”).

22 . According to the applicant ’ s medical file, during the night on 9 June 2009 he removed the plaster casts from his legs. He was informed of the negative consequences of removal of the plaster casts. Later he repeatedly removed casts from his legs.

23 . On 21 September 2009 the applicant complained to the Prosecutor General and on 23 September 2009 to the Parliamentary Commissioner for Human Rights, alleging, in detail, a lack of medical treatment and care while he had been in the ITT. On 29 October and 7 December 2009 the Volyn Regional Prosecutor ’ s Office replied to the applicant stating that he had been provided with medical treatment while in the ITT, in accordance with doctors ’ recommendations, and that the conditions of his detention had been in compliance with the law.

24 . From 8 to 24 October 2009 the applicant underwent treatment at the Luhansk SIZO hospital in connection with a malunion of the heel bones .

25. From 26 January to 17 February 2010 the applicant served his sentence in Kazankivsk Colony no. 93 in the Mykolayiv Region.

26. Since 2 March 2010 he has been serving his sentence in the Olshansk Colony no. 53 in the Mykolayiv Region. According to the case file, his imprisonment was due to end on 30 April 2015.

27 . According to the case file materials, during his detention in the two last-mentioned facilities, the applicant complained of pain in his heels, which had allegedly resulted from the malunion of his heel bones. He was prescribed medicines. As regards the malunion of his heel bones, he was offered further examination and treatment at medical facilities within the penal system. On 25 August 2011 and 21 November 2012 the applicant refused those offers.

COMPLAINTS

28. The applicant complained under Article 3 of the Convention that he had been beaten up by unknown persons on 27 April 2009 and by the police on 28 April 2009 and that there had been no effective investigation in respect of the above-mentioned events, and also that he had not been provided with the requisite medical treatment and special assistance in detention, which he needed in view of his physical disability. He further complained, under Article 6 § 1 of the Convention, that the proceedings in his case had been unfair. Lastly, he complained of a violation of Articles 8 and 13 of the Convention.

THE LAW

A. Complaint under Article 3 of the Convention

29. The applicant complained that he had been beaten up on 27 and 28 April 2009 and that there had been no effective investigation in that respect. He further complained that he had not been provided with the requisite medical treatment and special assistance in detention, which he had needed in view of his physical disability.

He relied on Article 3 of the Convention, which reads as follows:

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

1. Alleged ill-treatment on 27 and 28 April 2009

30. The Government submitted that the applicant had never complained of the alleged events before the domestic authorities. In respect of the events of 27 April 2009, they added that the applicant had failed to challenge the investigator ’ s decision of 30 April 2009 refusing to institute criminal proceedings into the alleged events (see paragraph 12 above). In respect of the events of 28 April 2009, they stressed that the applicant had sustained his injuries as a result of jumping out of a window on the second floor of the hospital in order to escape from police officers (see paragraph 11 above), and the State could not be held responsible for that event. Alternatively, in the event that it was found that the applicant had had no effective domestic remedies in respect of his complaints of ill-treatment, the Government invited the Court to reject this part of the application as having being introduced too late. The Government further stated that the applicant had abused his right of application because his complaints had been based on untrue facts aimed at misleading the Court.

31. The applicant insisted on his version of events as described in the application form. He stressed that he had submitted ill-treatment complaints to the Prosecutor General and to the Parliamentary Commissioner for Human Rights (see paragraph 23 above), and that on 7 July 2010 the public prosecutor had refused to institute criminal proceedings against the police officers for alleged ill ‑ treatment. The applicant submitted a copy of a prosecutor ’ s letter informing him about a decision taken on 7 July 2010, but not the text of the decision itself, to which he was allegedly given no access. He further submitted copies of letters which he had received from various State authorities, alleging that their content proved his account.

32. The Court considers that it is not necessary to examine the Government ’ s argument concerning an abuse of the right of application as in any event this part of the application must be declared inadmissible for the following reasons.

33. The Court reiterates that under the terms of Article 35 § 1 of the Convention it can only deal with a matter after all domestic remedies have been exhausted. The above provision normally requires that the complaints intended to be made subsequently in Strasbourg should have been raised before the appropriate domestic authorities and in compliance with the formal requirements laid down in national law (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, with further references).

34. The Court observes that despite the quite detailed account of events presented by the applicant in his application, there is no documentary evidence in the case file showing that the applicant has indeed raised his complaints of ill-treatment at the domestic level.

35. The Court cannot accept the applicant ’ s assertion that the prosecutor ’ s decision of 7 July 2010 was taken in response to his complaints of ill-treatment. The applicant failed to submit a copy of the above decision, and his allegation that he was not given access to it is not convincing. Firstly, within the domestic criminal proceedings the applicant was represented by a defence lawyer who could have successfully pursued the applicant ’ s allegations of ill-treatment. Secondly, before the Court he was represented by a lawyer who had had access to the domestic case file, having successfully submitted copies of some documents relating to his client ’ s case. Thirdly, the case file contains copies of the applicant ’ s complaints addressed to the Prosecutor General and the Parliamentary Commissioner for Human Rights (see paragraph 23 above), in which he made detailed allegations about, inter alia , the lack of medical treatment and care while in the ITT. In his submissions to the Prosecutor General and the Commissioner for Human Rights, the applicant did not raise a complaint of being ill-treated by the police in April 2009.

36. In the light of the foregoing, the Court finds that the applicant has failed to raise his complaints of ill-treatment before the domestic authorities as required by Article 35 § 1 of the Convention. It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2. Alleged lack of special assistance provided to the applicant while in detention

37. The Government submitted that the applicant had not complained to the penal authorities of a lack of special assistance needed in view of his physical disability. Nor had he raised the above complaints with the prosecutor ’ s office during his detention. The Government suggested that this aspect of the case was therefore inadmissible for non ‑ exhaustion of domestic remedies.

38. The applicant submitted that he had complained to the Prosecutor General and to the Parliamentary Commissioner for Human Rights (see paragraph 23 above), but to no avail.

39. The Court considers that the present complaint should be examined in the context of the State ’ s obligation to detain prisoners in conditions compatible with the requirements of Article 3 of the Convention (see, for example and amongst many other authorities, Kudła v. Poland [GC], no. 30210/96 , § 94, ECHR 2000-XI).

40. Turning to the Government ’ s objections, the Court notes that they are similar to those that it has already dismissed on a number of occasions, finding the remedies referred to ineffective on the grounds that it had not been shown that recourse to such proceedings could have brought about an improvement in an applicant ’ s detention conditions (see, for example, Rodzevillo v. Ukraine , no. 38771/05 , § 41, 1 4 January 2016, and Kleutin v. Ukraine , no. 5911/05, § 78, 23 June 2016). It can see no reason to hold otherwise in the present case. On the other hand, the Court reiterates that, in cases where there is a continuing situation, and it is clear from the outset that no effective remedy is available to the applicant, the six-month period runs from the cessation of the situation (see Antonenkov and Others v. Ukraine , no. 14183/02, § 32, 22 November 2005, and Koval v. Ukraine ( dec. ), no. 65550/01, 30 March 2004).

41. The Court observes that the applicant ’ s grievances in respect of this part of the application concern his detention in the ITT from 30 April to 5 May 2009 (see paragraph 17 above). In view of the absence of any reason for the Court to consider the applicant ’ s situation as ongoing after the latter date, he should have introduced this complaint within six months of leaving the above-mentioned facility. However, the present application was introduced on 30 August 2010.

42. Accordingly, the applicant ’ s complaints about the lack of special assistance while in detention in the ITT have been submitted out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

3. Alleged lack of medical treatment of the applicant while in detention

43. The Government submitted that the applicant had been provided with adequate medical treatment while in detention. They stressed that he had failed to follow doctors ’ recommendations not to remove the plaster casts from his legs (see paragraph 22 above) . This failure on the part of the applicant had led to the malunion of his heel bones (see paragraph 24 above). Finally, they added that the applicant had refused the penal authorities ’ offer that he could undergo further examination and treatment at medical facilities within the penal system (see paragraph 27 above).

44. The applicant disagreed with the Government, contending that the authorities had failed to perform the surgery which had been recommended for him on 30 April 2009 (see paragraph 18 above) . He explained that he had removed the plaster casts as a result of the pain and itchiness that he was experiencing, and the authorities ’ reluctance to address his complaints in that respect. He further stated that throughout his pre-trial and post-conviction detention periods his medical treatment had been inadequate and delayed. Lastly, he stressed that he had refused the offers of further examination and treatment because he believed that the proposed medical facilities could not be independent as they functioned within the penal system.

45. The Court notes that the recommendation for elective surgery given on 30 April 2009 was of a general character and did not provide an indication as to which of the applicant ’ s medical conditions it could have remedied. That recommendation has never been reiterated at a later stage.

46. The Court further notes that the applicant did not deny the fact that he had removed his plaster casts despite medical advice. It cannot exclude the possibility that this conduct could have had negative consequences for the applicant which may have contributed to the malunion of his heel bones. The Court also notes that the applicant underwent treatment at the Lugansk SIZO hospital after the above defect had been detected (see paragraph 24 above).

47. The Court further observes that throughout his pre-trial and post-conviction detention periods the applicant received medical care and treatment in respect of his heel fractures and other conditions. It appears from the applicant ’ s medical file that he received medication and was taken for tests. There is nothing to indicate that the above treatment was inadequate. On the other hand, the Court considers that his refusals, in August 2011 and November 2012, to undergo examination and treatment at medical facilities within the penal system (see paragraph 27 above) do not appear to have had reasonable grounds.

48. In the light of the foregoing, the Court considers that the State cannot be held responsible for the delays caused by the applicant ’ s own refusal to undergo medical examinations or to accept treatment. It finds therefore that the medical aid available to the applicant was sufficient in the circumstances.

49. It follows that this part of the application is manifestly ill ‑ founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Other alleged violations of the Convention

50. The Court has examined the other complaints submitted by the applicant under Articles 6 § 1, 8 and 13 of the Convention. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court ’ s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. These parts of the application must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 April 2019 .

Andrea Tamietti Georges Ravarani Deputy Registrar President