FIFTH SECTION

CASE OF GONCHARUK AND OTHERS v. UKRAINE

( Application s no s . 25837/18 and 2 others -

see appended list )

JUDGMENT

STRASBOURG

4 June 2020

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

In the case of Goncharuk and Others v. Ukraine ,

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

Gabriele Kucsko-Stadlmayer , President, Mārtiņš Mits , Lәtif Hüseynov , judges, and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 14 May 2020 ,

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

PROCEDURE

1 . The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table .

2 . Notice of the applications was given to the Ukrainian Government (“the Government”).

3 . In application no. 55582/18, on 7 December 2018, the Court applied an interim measure under Rule 39 of the Rules of Court and priority treatment was given to the case under Rule 41 of the Rules of Court . On 22 March 2019, the interim measure was lifted.

THE FACTS

4 . The list of applicant s and the relevant details of the applications are set out in the appended table.

5 . The applicant s complained under Article 3 of the Convention that they did not receive adequate medical care in detention . Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

6 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

7 . The applicant s complained principally that they were not afforded adequate medical treatment in detention . They relied on 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.”

8 . The Court notes that the applicant s suffered from serious medical conditions, as indicated in the appended table, which affected their everyday functioning. Therefore they could have experienced considerable anxiety as to whether the medical care provided to them was adequate.

9 . The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine (see Blokhin v. Russia [GC], no. 47152/06, § 137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate (see, for example, Gorbulya v. Russia , no. 31535/09, § 62, 6 March 2014, and Pokhlebin v. Ukraine , no. 35581/06, § 62, 20 May 2010, both with further references) and that ‒ where necessitated by the nature of a medical condition ‒ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee ’ s health problems or preventing their aggravation (see, inter alia , Ukhan v. Ukraine , no. 30628/02, § 74, 18 December 2008, and Kolesnikovich v. Russia , no. 44694/13, § 70, 22 March 2016, both with further references). The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see, for instance, Sadretdinov v. Russia , no. 17564/06, § 67, 24 May 2016, and Konovalchuk v. Ukraine , no. 31928/15, § 52, 13 October 2016, both with further references).

10 . Having examined all the material submitted to it, the Court has identified the shortcomings in the applicant s ’ medical treatment, which are listed in the appended table. The Court has already found a violation in respect of issues similar to those in the present case (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-05, ECHR 2005 II; Melnik v. Ukraine, no. 72286/01, §§ 104-06, 28 March 2006; and Logvinenko v. Ukraine, no. 13448/07, §§ 68-78, 14 October 2010). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicant s did not receive comprehensive and adequate medical care whilst in detention.

11 . These complaints are therefore admissible and disclose breach es of Article 3 of the Convention.

12 . The applicants in applications nos. 25837/18 and 37975/18 submitted a complaint under Article 13 of the Convention concerning the lack of any effective remedy in domestic law in respect of their in adequate medical care in detention and the applicant in application no. 37975/18 further complained under Article 3 of the Convention of the inadequate conditions of his detention which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Dvoynykh v. Ukraine , no. 72277/01, § 72, 12 October 2006; Barilo v. Ukraine , no. 9607/06, 16 May 2013, §§ 104-105; and Melnik v. Ukraine, cited above, §§ 113-116.

13 . 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.”

14 . Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Logvinenko v. Ukraine, cited above, §§ 89-95), the Court considers it reasonable to award the sum s indicated in the appended table.

15 . 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 s , within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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 4 June 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Gabriele Kucsko-Stadlmayer Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 of the Convention

( inadequate medical treatment in detention )

No.

Application no.

Date of introduction

Applicant ’ s name

Date of birth

Representative ’ s name and location

Principal medical condition

Shortcomings in medical treatment

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

25837/18

22/05/2018

Vitaliy Pavlovych GONCHARUK

17/06/1980

Olena Oleksiyivna Protsenko

Yevgen Volodymyrovych

Chekaryov

Vitaliya Pavlivna

Lebid

Mykhaylo Oleksandrovych

Tarakhkalo

Kyiv

HIV/AIDS

lacking/delayed drug therapy

06/07/2017 to

23/11/2017

4 months and 18 days

interruptions in medical treatment

24/12/2017 to

28/02/2018

2 months and 5 days

Art. 13 - lack of any effective remedy in domestic law in respect of failure to provide adequate medical treatment

7,500

250

37975/18

17/10/2018

Yevgeniy Vasylyovych KONASH

17/01/1974

O steochondritis, hernia, deformation of spinal cavity, spondylosis (deformation of intervertebral disks), peptic ulcer, gastroduodenitis , intervertebral disc protrusion,

diskogenic radiculitis and hernias of lumbosacral region of spine

lack of/delay in medical examination, lack of/delay in consultation by a specialist

01/12/2014 to

05/11/2018

3 years, 11 months and 5 days

Art. 13 - lack of any effective remedy in domestic law in respect of failure to provide adequate medical treatment

Art. 3 – conditions of detention in Chernigiv /Kyiv SIZO

2,6-3,2 m²

29/09/2014 to

05/11/2018

4 years, 1 month and 8 days

bunk beds, lack of or insufficient electric light, lack of or insufficient natural light, lack of or inadequate hygienic facilities, lack of fresh air, lack of privacy for toilet, sharing cells with inmates infected with contagious disease, passive smoking, overcrowding, insufficient number of sleeping places, infestation of cell with insects/rodents, mouldy or dirty cell, lack of toiletries, no or restricted access to warm water, no or restricted access to

running water

9,800

-

55582/18

27/11/2018

Oleksandr Oleksandrovych KOT

09/02/1984

Vasyl Ivanovych Melnychuk

Kharkiv

Urologic diseases

lack of/delay in removal of a ureteral stent, lack of/delay in removal of kidney stones, lack of/delay in medical examination

16/03/2017 to

22/06/2018

1 year, 3 months and 7 days

lack of/delay in removal of ureteral stent, lack of/delay in removal of kidney stones

14/09/2018 to

18/12/2018

3 months and 5 days

7,500

250[1] Plus any tax that may be chargeable to the applicants.

[2] Plus any tax that may be chargeable to the applicants.