FIFTH SECTION

CASE OF VELICHKO v. UKRAINE

( Application no. 22273/12 )

JUDGMENT

STRASBOURG

28 January 2021

This judgment is final but it may be subject to editorial revision.

In the case of Velichko v. Ukraine ,

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

Arnfinn BÃ¥rdsen, President, Ganna Yudkivska, Mattias Guyomar, judges, and Martina Keller , Deputy Section Registrar ,

Having regard to:

the application (no. 22273/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladyslav Viktorovych Velichko (“the applicant”), on 16 April 2012;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the lack of medical treatment in detention and the lack of an effective remedy in that regard;

the parties ’ observations;

Having deliberated in private on 17 December 2020 ,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1 . The case concerns the lack of medical treatment in detention and the lack of an effective remedy in that regard.

THE FACTS

2 . The applicant was born in 1973 and lives in Izmayil. He was represented by Ms O.Y. Sapozhnikova, a lawyer practising in Kyiv.

3 . The Government were represented by their Agent, Mr I. Lishchyna.

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

5 . The applicant has the status of a disabled person (group III). He was diagnosed with HIV in 1996.

6 . On 22 October 2010 the applicant was detained on remand at the Izmayil Detention Centre in Odesa region (“Izmayil SIZO”) on suspicion of theft. On 25 October 2010, during a medical examination at the above facility, the applicant informed the doctor that he had been diagnosed with HIV.

7 . Between October 2010 and May 2011 the applicant was diagnosed with HIV (clinical stage IV), hepatitis C and a number of other diseases. The doctors prescribed him the necessary treatments, inter alia , for dysautonomia, hepatitis, stomatitis, candidiasis etc. No antiretroviral treatment (“ART”) was provided to him during that period.

8 . On 18 May 2011 the head of the Izmayil SIZO wrote to the judge presiding in the criminal case against the applicant at the Izmayil Local Court (“Izmayil Court”) that the applicant ’ s state of health had been gradually deteriorating and that he needed an urgent prescription for ART at the regional AIDS centre in Odesa. It was also noted that such therapy was not possible on the premises of the Izmayil SIZO.

9 . On the same day, the judge of the Izmayil Court suspended the criminal proceedings against the applicant and ordered his transfer to the Odesa Detention Centre (“Odesa SIZO”) for further examination and treatment on the premises of the regional AIDS centre in Odesa.

10 . On 27 May 2011 the applicant was transferred to the Odesa SIZO.

11 . According to the letters of 25 June and 12 August 2011 of the head of the Odesa SIZO to the judge of the Izmayil Court, on 7 June 2011 the applicant was offered ART and chemotherapy for prevention of tuberculosis but he refused to receive it. He also refused to provide any written explanation in that regard.

12 . On 10 June 2011 the applicant was examined at the regional AIDS centre in Odesa. The doctors confirmed his HIV status and also diagnosed tuberculosis. The applicant was prescribed out-patient treatment for tuberculosis and ART on the premises of the SIZO. According to a certificate dated 10 June 2011, signed by a penitentiary service official and two doctors, the applicant again refused to undergo ART treatment.

13 . On 20 June 2011 the applicant was examined in a private clinic and diagnosed with lymphadenopathy.

14 . On 24 June 2011 the applicant was again offered out-patient treatment on the premises of the Odesa SIZO, but he refused it, as stated by the head of the Odesa SIZO in his letter of 25 June 2011 to the judge of the Izmayil Court.

15 . On 12 August 2011 the head of the Odesa SIZO wrote to the judge of the Izmayil Court that, in compliance with the court ’ s ruling, the applicant had undergone a medical examination and out-patient ART treatment had been prescribed. However, the applicant had refused to undergo the prescribed out-patient ART treatment on the premises of the Odesa SIZO on three occasions. In the light of the above, it was proposed to transfer the applicant back to the Izmayil SIZO. He also assured that in case of the applicant ’ s consent to undergo the necessary treatment, he would receive it in full.

16 . On 16 August 2011 the Izmayil Court allowed the applicant ’ s transfer from the Odesa SIZO to the Izmayil SIZO, having noted that the applicant ’ s behaviour, particularly his refusal to receive out-patient treatment in the Odesa SIZO, could be conceived as deliberate protraction of consideration of his criminal case. Consequently, the court ordered to resume the examination of the case.

17 . On the same date, following the above court ’ s decision, the applicant was transferred to the Izmayil SIZO. Upon his arrival he informed the head of the medical unit that he would refuse ART on the premises of the Izmayil SIZO, as well as on the premises of any penitentiary institution. The above statement was certified in writing by two employees of the SIZO medical unit and a penitentiary officer.

18 . On 8 November 2011 the applicant sent a letter to the Ukrainian Parliament Commissioner for Human Rights wherein he complained that despite his critical condition, the authorities had refused to provide him with in-patient ART treatment and treatment against concomitant diseases in a specialised hospital. The outcome of this complaint is unknown.

19 . On 1 December 2011 the applicant lodged a motion before the judge of the Izmayil Court seeking to change his preventive measure from pre ‑ trial detention to an obligation not to abscond. In the motion the applicant reasoned that an alternative preventive measure was necessary in order to allow him to undergo in-patient treatment in a specialised AIDS hospital.

20 . On 20 December 2011 the applicant ’ s attorney lodged a motion seeking to change the applicant ’ s preventive measures on the same grounds.

21 . On 12 January 2012 the Izmayil Court ordered the applicant ’ s forensic examination in order to establish whether he could be held in detention.

22 . On 19 January 2012 the applicant lodged a complaint before the Odesa Regional Prosecutor ’ s Office about the lack of ART in detention.

23 . On 27 January 2012 the applicant was transferred to the Odesa SIZO for further forensic examination.

24 . On 8 February 2012 the applicant underwent a CD4 count test, which indicated CD4 counts of 79 cells/mm 3 .

25 . On 9 February and 1 March 2012 the applicant ’ s attorney requested the head of the Odesa SIZO to provide information concerning the applicant ’ s state of health at the time and medical treatment provided to him in detention between 2010 and 2012. She also inquired whether he had been provided with the necessary ART and an appropriate diet.

26 . On 13 March 2012 the applicant underwent a blood test which detected hepatitis.

27 . On 15 and 22 March 2012 the head of the Odesa SIZO informed the applicant ’ s attorney that the applicant had been diagnosed with HIV, tuberculosis, pneumonia, candidosis, hepatitis, splenomegaly, hypertension, varicosity of lower extremities, venous insufficiency , and multiple organ dysfunction syndrome, and offered corresponding treatment. He further referred to the applicant ’ s refusals of 7 and 10 June 2011 to undergo the prescribed out-patient treatment. The head of the Odesa SIZO also stated that if the applicant consented to receive the prescribed treatment, it would be provided to him in full.

28 . On 21 March 2012 a prosecutor from the Odesa Regional Prosecutor ’ s Office replied to the applicant ’ s complaint of 19 January 2012. In that letter the prosecutor noted that on two occasions in June 2011 the applicant had refused to undergo out-patient ART treatment on the premises of the Odesa SIZO. Moreover, upon his return to the Izmayil SIZO from the Odesa SIZO the applicant had refused to undergo out-patient ART treatment in the SIZO as well as on the premises of any other penitentiary institution. In the light of the above, the prosecutor concluded that the applicant ’ s complaint was unfounded.

29 . On 16 April 2012 the applicant lodged a request before the Court under Rule 39 of the Rules of Court. He submitted that he had been detained in the Odesa SIZO in order to undergo the forensic examination ordered by the court ’ s ruling of 12 January 2012. However, at the material time he had not been provided with the necessary medical examination and treatment.

30 . Based on the documents provided by the applicant, on 23 April 2012, the Court decided to indicate to the Government under Rule 39 of the Rules of Court that the applicant should immediately be provided with appropriate in-patient treatment in a hospital specialising in treatment of AIDS and concomitant diseases. The Court also requested the Government to provide a copy of the applicant ’ s medical file and inform the Court about the treatment prescribed to and received by the applicant.

31 . On 23 April 2012 the Odesa Bureau of Forensic Examinations conducted the examination ordered by the ruling of the Izmayil Court of 12 January 2012. In its report the Bureau confirmed that the applicant had HIV, hepatitis, candidosis, pancreatitis, splenomegaly, venous insufficiency, post-thrombotic syndrome and hypertension. The Bureau concluded that the above diseases were not listed among those incompatible with detention on the premises of penitentiary institutions.

32 . On 28 April 2012 the applicant was consulted by an infectious disease doctor from a public hospital. The doctor concluded that the applicant did not require in-patient care and prescribed necessary medication and a cranial CT scan.

33 . On 14 May 2012 the applicant was admitted to the Infectious Hospital of Izmayil District in Odesa Region for examination and subsequent treatment. On 15 May 2012 the Government informed the Court and provided the medical documents requested on 23 April 2012.

34 . On 16 May 2012 the Izmayil Court decided to release the applicant from detention with an undertaking not to abscond in view of his poor state of health.

35 . On 6 July 2012 the Court reconsidered the request under Rule 39 of the Rules of Court and decided to lift the interim measure previously indicated on 23 April 2012.

RELEVANT LEGAL FRAMEWORK

36 . The relevant domestic law and international and domestic material relating to medical care in detention can be found in the judgment in the case of Sergey Antonov v. Ukraine (no. 40512/13, §§ 40-53 and 55-56, 22 October 2015).

THE LAW

37 . The applicant complained about the lack of medical treatment in detention and the lack of an effective remedy in that regard during the period between 22 October 2010 and 16 May 2012. He invoked Articles 3 and 13 of the Convention, which read as follows:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

38 . The parties did not make any submissions as to the admissibility of the application.

39 . The Court notes that the applicant was not provided with ART during his detention in the Izmayil SIZO from 22 October until 27 May 2011, since its prescription was not possible there. However, on 27 May 2011 he was transferred to the Odesa SIZO, an institution which was able to prescribe and provide ART, but the applicant refused to accept it on several occasions, the latest one being on 24 June 2011. In this respect, given that in his reply to the Government ’ s observations on the merits the applicant did not comment on the issue of his refusals to receive ART, the Court accepts the Government ’ s statement and considers that the refusals were genuine.

40 . The Court reiterates that the concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicant a victim (see Petkov and Others v. Bulgaria (dec.), nos. 77568/01 and 2 others, 4 December 2007). In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see, mutatis mutandis, Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). In the present case, the Court considers that between 7 June and 24 June 2011, the first and the last time that the applicant was offered ART and refused it, the state authorities took all necessary measures to comply with the positive obligation to provide medical assistance to the applicant and that such actions interrupted the “continuing situation” which had started on 22 October 2010.

41 . Therefore, since the applicant submitted the present application to the Court on 12 April 2012, roughly ten months after his last refusal to receive the ART treatment, his complaints relating to the period between 22 October 2010 and 24 June 2011 have been introduced outside of the six ‑ month time ‑ limit.

42 . It follows that this part of the application is inadmissible under Article 35 § 1 of the Convention and must therefore be rejected pursuant to Article 35 § 4 of the Convention.

43 . The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

44 . The applicant submitted that the penitentiary authorities had failed to adequately monitor his medical conditions and that only after the Court had granted his request under Rule 39 of the Rules of Court had he been released and able to undergo the adequate treatment in a public hospital.

45 . In their observations the Government submitted that the applicant had undergone several tests and examinations. They also maintained that the Izmayil SIZO had been equipped with the medications necessary for ART therapy at the time. They further noted that the applicant had not addressed the SIZO administration directly with complaints as to inadequate medical treatment. In support of their submissions the Government sent a copy of a letter from the State Penitentiary Service of Ukraine containing an account of the actions taken by the authorities in respect of the applicant ’ s examination and treatment offered in detention. In these circumstances, the Government submitted that there was no violation of Articles 3 and 13 of the Convention.

46 . The Court notes that the last time the applicant was offered ART and refused to receive it was on 24 June 2011. Following his transfer to the Izmayil SIZO, on 16 August 2011 the applicant informed the SIZO staff that he would refuse the ART in that or any other penitentiary institution, however, there is no evidence that the ART treatment was proposed to him upon arrival. Therefore, the applicant ’ s statement given on that day (see paragraph 17 above) could not be regarded as a refusal of treatment already proposed but rather as a general statement of potential refusal of such treatment, if offered in penitentiary conditions.

47 . The Court further notes that on 8 November 2011 the applicant and his attorney started submitting complaints to various State authorities as to the necessity of receiving ART therapy, however, there is no evidence that any treatment was provided to the applicant. In their replies to the above complaints about the alleged lack of ART, the authorities essentially referred to the applicant ’ s previous refusals to undergo ART treatment.

48 . Furthermore, the Government provided no evidence that any treatment had been offered to the applicant during the period in question or that he had continued to refuse it.

49 . In addition, it appears that no medical examination of the applicant was conducted between 16 August 2011 and 8 February 2012, when he underwent the CD4 count test. He subsequently underwent another blood test, but no other medical assistance was offered to him until the Court granted his request under Rule 39 of the Rules of the Court.

50 . Given the seriousness of the applicant ’ s condition, the Court considers that his previous refusals of treatment could not be considered as justification to discontinue the positive obligation to provide him with medical treatment, nor did they prevent the domestic authorities from prescribing necessary treatment for a considerable amount of time.

51 . Even if, as submitted by the Government, the applicant had not directly requested ART, it was the authorities ’ duty to ensure proper monitoring of his health and verify whether he was willing to accept the ART treatment, given the seriousness of his diagnosis and the inherent risk of concomitant illnesses (see, mutatis mutandis, Karpylenko v. Ukraine , no. 15509/12, § 84, 11 February 2016).

52 . In these circumstances, the Court finds that the authorities failed to adequately discharge their positive obligation to provide adequate medical aid to the applicant during his detention between 25 June 2011 and 16 May 2012.

53 . The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of this period.

54 . Having regard to its well-established case-law (see Melnik v. Ukraine , no. 72286/01, §§ 113-116, 28 March 2006, Koval v. Ukraine , no. 65550/01, § 98, 19 October 2006, and Sergey Antonov v. Ukraine , no. 40512/13, §§ 94-97, 22 October 2015), the Court further finds that there has been a violation of Article 13 of the Convention.

55 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

56 . The applicant claimed 8,000 euros (EUR) in respect of non ‑ pecuniary damage suffered as a result of inadequate medical care in detention.

57 . Regard being had to the documents in its possession, the Court considers it reasonable to award the applicant EUR 5,250 in respect of non ‑ pecuniary damage . It rejects the remainder of the claim under this head.

58 . The applicant claimed EUR 2,780 in respect of costs and expenses incurred in the proceedings before the Court.

59 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 250 covering the costs of legal fees for the proceedings before the Court.

60 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,250 (five thousand two hundred and fifty euros) , plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 250 (two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 28 January 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President