FIFTH SECTION

DECISION

Application no . 13777/03 Nadezhda Nikolayevna GRITSENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 September 2013 as a Committee composed of:

Angelika Nußberger , President, André Potocki , Aleš Pejchal , judges and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 31 March 2003,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Nadezhda Nikolayevna Gritsenko , is a Ukrainian national, who was born in 1970 and lives in Kharkiv . She was represented before the Court by Mr I.O. Tatarkin , a lawyer practising in Kharkiv .

The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr N. Kulchytskyy , from the Ministry of Justice.

A. The circumstances of the case

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

The applicant is the widow of Mr V.G.

1. Criminal proceeding against the applicant ’ s husband

On 12 February 2001 Mr V.G. was arrested and detained on suspicion of attempted murder and armed robbery committed together with Mr S.A., who was arrested a week later.

Subsequently Mr V.G. and Mr S.A. were charged with the above crimes, as well as with illegal possession of a firearm. The investigation established that Mr V.G. and Mr S.A. had planned a robbery and for this purpose had asked their acquaintance Mr R. to arrange for the exchange of large amount of hard currency (54,000 US dollars). On 14 July 2000 Mr R. had brought Mr V.G. and Mr S.A. to Mr B. who was supposed to effect the exchange. In the office of Mr B., in the presence of Ms T. V. and Mr A.A., Mr V.G. and Mr S.A. had threatened Mr B. with pistols and had demanded the money. Then Mr V.G. had shot twice at Mr B. After that Mr V.G. and Mr S.A. took a case with 10,000 US dollars and left.

In May 2001 Mr V.G. and Mr S.A. were committed to stand trial before the Kharkiv Regional Court on charges of attempted murder, armed robbery and illegal possession of a firearm.

On 7 June 2001 Mr V.G. filed a request for release, claiming that owing to his poor state of health he was unfit for detention. This request was dismissed by the Regional Court, as were a number of subsequent identical requests. The applicant ’ s numerous complaints against the judges for refusal to release her husband were to no avail either.

On 24 April 2002 the Kharkiv Regional Court convicted Mr V.G. and Mr S. A. as charged and sentenced them to eight years ’ imprisonment each. This conviction was based among other things on the evidence of the victim and eye-witnesses who confirmed that during the robbery Mr V.G. had shot into the forearm and abdomen of the victim, having caused the latter the bodily harm, which the court classified as grievous and dangerous for life.

On 1 October 2002 the Supreme Court, after a hearing held in the presence of the lawyers of Mr V. G. and Mr S.A., dismissed their appeals and upheld the judgment of 24 April 2002 with minor changes. It also noted that the issue of release of Mr V.G. on compassionate grounds due to his state of health could be decided in accordance with criminal and criminal procedural law.

2. Medical treatment of Mr V.G. in detention

At the time of his arrest on 12 February 2001 the applicant ’ s husband suffered from several serious illnesses. Upon his arrival at the Kharkiv SIZO he was examined by the doctor and was registered as having the following medical conditions: insulin-dependent diabetes mellitus, diabetic angiopathy of the lower extremities and diabetic nephropathy. He was prescribed necessary treatment to his medical conditions, which, according to the Government, he received in full.

Between April and July 2001 Mr V.G. was examined by a number of doctors, including an ophthalmologist (11 April 2001), an urologist (20 June), a neuropathologist (6 July) and an endocrinologist (24 July), and where necessary prescribed a treatment, which he received.

Between 27 July and 3 August 2001 Mr V.G. had in-patient treatment in the endocrinology ward of the Kharkiv Regional Hospital, followed by in-patient treatment in the endocrinology ward of the Kharkiv City Hospital no. 2 between 3 and 13 August 2001.

On 11 September 2001 the acting head of the medical unit of the Kharkiv SIZO, in reply to the query of Mr V.G. ’ s lawyer, informed the latter that the SIZO did not have a glucose meter, that the SIZO did not have an endocrinologist or a hospital. It was further noted that health of Mr V.G. had started deteriorating.

Between 18 and 24 September 2001 the applicant ’ s husband had in-patient treatment in the endocrinology ward of the Kharkiv City Hospital no. 2 and between 1 October 2001 and 17 October in the therapy ward of the Kharkiv City Hospital no. 1.

Between 17 October 2001 and 30 April 2002 he had further in-patient treatment in the medical wing of the Kharkiv SIZO no. 27.

On 21 November 2001 Mr V.G. was examined by an ophthalmologist.

On 27 December 2001, 21 February 2002, 5 and 25 April 2002 Mr V.G. was examined by an endocrinologist.

On 8 and 18 February 2002 Mr V.G. was examined by a surgeon.

On 18 April 2002 Mr V.G. was examined by an ophthalmologist.

Between 30 April and 11 June 2002 Mr V.G. underwent medical treatment in the multidisciplinary hospital of the Temnivska Correctional Colony no. 100.

On 13 May 2002 Mr V.G. was examined by a neuropathologist .

On 21 May 2002 Mr V.G. was examined by a surgeon.

The above doctors gave their recommendations on Mr V.G. ’ s state of health and the necessary treatment.

Between 11 June and 2 July 2002 Mr V.G. was treated in the medical wing of Kharkiv SIZO no. 27.

On 1 July the head of the SIZO initiated the transfer of Mr V.G. to the multidisciplinary hospital of the Temnivska Correctional Colony no. 100 for a change in treatment and the applicant was transferred there on the next day.

On 5, 12, 15, 17, 22, 26, 29 and 31 July 2002 Mr V.G. was examined by a surgeon.

On 12, 19 and 26 July 2002 Mr V.G. was examined by an ophthalmologist.

By letter of 19 July 2002, the Head of the Medical Division of the State Department for Execution of Sentences informed the applicant that her husband on many occasions had received medical treatment in the SIZO, in the medical institutions of Kharkiv and in the regional hospital for convicted persons. She was further informed that since 2 July 2002 her husband had been staying in the latter institution and was receiving medical care in full and his state of health was close to satisfactory.

On 23 July 2002 Mr V.G. was examined by an endocrinologist and an urologist, on 24 July by a neuropathologist , on 2 August by an ophthalmologist, on 4, 12, 21 and 27 August by a surgeon, on 21 August by a nephrologist.

On 22 August 2002 Mr V. G. underwent blood transfusion in the hospital.

On 29 August 2002 Mr V.G. was examined by medical commission which took note of his diseases and concluded that he was not eligible to a release on compassionate grounds despite deterioration of his health.

Between 3 and 9 September 2002 Mr V.G. was treated in the purulent-septic ward of the Kharkiv Regional Hospital.

By letter of 6 September 2002 the head of the Kharkiv Regional Penitentiary Department informed the applicant that the diagnosis of her husband was not listed among the diseases that could be a ground for release on compassionate grounds.

On 9 September 2002 Mr V.G. was discharged from the Kharkiv Regional Hospital to the multidisciplinary hospital of the Temnivska Correctional Colony no. 100, however, upon request of his lawyer, he was transferred to the Kharkiv Regional Traumatology Clinic the same day.

On 17 September 2002 Mr V.G. was examined by the endocrinologist who prescribed him necessary treatment.

By letter of 3 October 2002, the head of the Kharkiv Regional Penitentiary Department informed the applicant that her husband was being treated in the hospital and his state of health was extremely poor. He further informed her that the Supreme Court had been notified that Mr V.G. could not be present at the hearing before it for the health considerations. By another letter of the same date, he further updated the applicant on the course of medical treatment of her husband and informed her that the question of his early release due to his state of health could be decided only after the judgment against him became final.

On 12 October 2002 Mr V.G. died in the Kharkiv Regional Traumatology Clinic of chronic pyelonephritis.

COMPLAINTS

The applicant complained under Article 3 of the Convention, that her husband had been placed in the Kharkiv SIZO and had been held there until his death without adequate medical treatment. Furthermore, despite his poor health he had had to attend the court ’ s hearings.

The applicant further complained under Article 6 § 1 of the Convention that despite the health problems of her husband, the domestic courts refused to release him and denied him fair trial.

The applicant also complained under Article 6 § 3 (c) of the Convention that her husband ’ s lawyer had been excluded from hearings held before the Court of Appeal.

Lastly, she complained that having failed to provide her husband with appropriate medical treatment and to save his life the domestic authorities violated Article 13 of the Convention.

THE LAW

1. The applicant complained under Articles 3 and 13 about lack of appropriate conditions and medical treatment of her husband in the SIZO, that he had to attend the court hearings between May 2001 and April 2002 despite his poor state of health and that the authorities failed to save his life. The Court, which is master of the characterisation to be given in law to the facts of the case, will examine these complaints under Articles 2 and 3 of the Convention, which read in so far as relevant as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...

Article 3

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

The Government maintained that the applicant had no requisite standing to complain before the Court about inadequate medical treatment of her husband under Article 3 of the Convention. According to the Government the applicant had not been affected by the alleged violations directly and had not had access to full information about medical treatment of her husband. They further maintained that the applicant ’ s allegations were based on fragmentary information and her own surmises rather than on comprehensive data about the treatment her husband received. Therefore, her own distress could not attain the minimum level of severity either. They concluded therefore that the application was inadmissible ratione personae .

The applicant did not submit any observations within the fixed time-limit.

The Court notes that the present application was lodged by the applicant with respect to her husband who had died on 12 October 2002, that is five and a half months prior to the date of lodging (31 March 2003). The Court recalls that a person, non-governmental organisation or a group of individuals must, in order to be able to lodge a petition in pursuance of Article 34, claim “to be the victim of a violation ... of the rights set forth in the Convention... ”. While it is true the rules of admissibility governed by Article 35 must be applied with some degree of flexibility and without excessive formalism, Article 34 requires that an individual applicant should claim to have been actually affected by the violation alleged (see Karner v. Austria , no. 40016/98, § 25, ECHR 2003-IX and Fairfield and others v. the United Kingdom ( dec. ), 24790 / 04 , 8 March 2005).

However, insofar as the applicant complained under Article 3 the Convention, taken alone and together with Article 13 of the Convention, that her husband had been subjected to inhuman treatment on account of the inadequate medical care he had received during his detention in the SIZO and that it caused his death, the Court has considered that those complaints could be examined under Articles 2 and 3 of the Convention. While it is also true that individuals who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention may apply as applicants in their own right, this is a particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system. The Court considers that the applicant has standing to complain about the improper medical treatment of her husband which led to his death. It rejects therefore this objection of the Government.

The Government further maintained that the applicant did not exhaust domestic remedies as she had not managed to lodge her complaint against the SIZO in accordance with the formalities set forth in the domestic procedural law. They further maintained that Mr V.G. received adequate medical treatment for his diseases. In particular, insulin had been administered to him in appropriate manner as had been confirmed by the stable level of glucose in his blood and urine. They also noted that the domestic authorities had taken all necessary measures for constant surveillance of Mr V.G. ’ s health and his appropriate treatment and had placed him in different specialised hospitals, including civilian ones, when his state of health had required so. They finally contended that all recommendations on Mr V.G. ’ s hospitalisation and examination had been followed in due time (see, a contrario , Mouisel v. France , no. 67263/01, § 45, ECHR 2002 ‑ IX).

The applicant did not submit any observations in reply within the set time-limit.

The Court notes that the Government raised an objection as to exhaustion of domestic remedies by the applicant, however, the Court does not consider it is necessary to examine this objection, given that this part of the application is inadmissible for the following reasons.

To the extent that the applicant complained that her husband had to attend court hearings despite his poor state of health, it should be noted that those hearings took place between May 2001 and April 2002, that is more than six months prior to lodging of the present application (see, mutatis mutandis , Koval v. Ukraine ( dec. ), no. 65550/01, 30 March 2004; Mikhaniv v. Ukraine ( dec. ), no. 75522/01, 20 May 2008). Therefore, this complaint is belated and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Furthermore, the Court reiterates that although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment (see Mouisel v. France , cited above, § 40, with further references).

In the present case, the applicant ’ s husband suffered from many serious diseases at the moment of his arrest. At the same time, he was suspected of grave and violent crime and the grounds for that suspicion appeared to be sufficient, given the evidence of several eyewitnesses, including his accomplice, a surviving victim and three other witnesses. Therefore, the choice of the authorities to detain Mr V.G. does not appear to be arbitrary. Furthermore, it appears that his health conditions received attention from the authorities and many different steps had been taken to provide the applicant ’ s husband with medical treatment and those steps do not appear to be unreasonable. Nothing suggests that Mr V.G. died because his medical treatment was not adequate.

The applicant complained that her husband had been held in the SIZO until his death without medical treatment and without any possibility of release in order to receive appropriate treatment in a civilian hospital. Her complaint, however, does not appear to match the factual circumstances of the case. According to the information and documents submitted by the parties, Mr V.G. was held in the Kharkiv SIZO for only part of the period in question, in particular he was treated in the multidisciplinary prison hospital between 30 April and 11 June 2002 and between 2 July and 3 September 2002 and in a number of civilian hospitals between 27 July and 13 August 2001, between 18 and 24 September 2001, between 1 and 17 October 2001 and between 3 September and 12 October 2002. The applicant did not make any complaints about the treatment of her late husband in any other institutions, including several civilian hospitals. It is true, as the Government observed, that the applicant could not know all details of the treatment of her husband in different medical institutions, but the case-file materials, including those submitted by the applicant herself, demonstrate that she had at least general information that her late husband received medical treatment outside the SIZO on numerous occasions. The Court considers that the applicant could not have been unaware of those facts and could not claim that her husband could not receive any treatment in the SIZO and had not been allowed to receive any treatment in civilian hospitals. In absence of any complaints concerning Mr V.G. ’ s treatment outside SIZO or the adequacy of his treatment as a whole, the Court concludes that this complaint, as formulated by the applicant, is unsubstantiated. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. The applicant further complained under Article 6 §§ 1 and 3 (c) of the Convention that despite the health problems of her husband, the domestic courts refused to release him and denied him fair trial, and that her husband ’ s lawyer had been excluded from hearings held before the Court of Appeal.

The Court reiterates that it has consistently rejected as inadmissible ratione personae applications lodged by the relatives of deceased persons in respect of alleged violations of rights other than those protected by Articles 2 and 3 of the Convention (see, for instance, Fairfield , cited above, and Biç and Others v. Turkey , no. 55955/00, § 24, 2 February 2006 and the further case-law mentioned therein).

Accordingly, the Court finds that the applicant in this case does not have the requisite standing under Article 34 of the Convention for her complaints about the unlawfulness of the pre-trial detention and unfairness of the trial of her late husband, formulated by the applicant under Article 6 §§ 1 and 3 and that this part of the application must be rejected as incompatible ratione personae with the provisions of the Convention in accordance with Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Angelika Nußberger Deputy Registrar President