FIFTH SECTION

CASE OF STRYUKOV v. UKRAINE

( Application no. 78484/11 )

JUDGMENT

STRASBOURG

23 January 2020

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

In the case of Stryukov v. Ukraine ,

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

Síofra O ’ Leary, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 17 December 2019 ,

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

PROCEDURE

1 . The case originated in an application (no. 78484/11) 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 Andriy Vasylyovych Stryukov (“the applicant”), on 21 December 2011.

2 . The applicant was represented by Ms O. Sapozhnikova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

3 . The applicant alleged, under Articles 3 and 13 of the Convention, that he had not been provided with adequate medical treatment and assistance while in detention, that the conditions of his transportation between the detention facility and the court had been poor, and that he had not had an effective domestic remedy for the above complaints.

4 . On 30 March 2014 the applicant died. On 15 February 2018 his mother, Ms Ludmyla Stryukova, expressed the wish to pursue the proceedings before the Court.

5 . On 14 November 2018 the Government were given notice of the above complaints and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

6 . The applicant was born in 1970.

7 . On 4 January 2011 the applicant was arrested on suspicion of drug offences and was placed in a cell at the Genichesk temporary detention centre. The applicant allegedly felt unwell but was refused any medical treatment at that time.

8 . On 13 January 2011 Genichesk Hospital issued a certificate stating that the applicant had been suffering fr om tuberculosis since 2009. His disease was active and therefore dangerous to others and thus required medical treatment.

9 . On 14 January 2011 the Genichesk District Court ordered the applicant ’ s pre-trial detention.

10 . According to the applicant, he had remained in the Genichesk temporary detention centre without receiving any treatment for his tuberculosis until he had been transferred to the Zaporizhzhya pre-trial detention centre (“the SIZO”) on 12 February 2011.

11 . On 11 March 2011 the SIZO authorities informed the applicant ’ s defence lawyer that the applicant had been provided with the necessary inpatient treatment for tuberculosis at the SIZO with “positive progress [towards recovery]”. The nature of the treatment was not indicated.

12 . On 4 August 2011 the SIZO authorities informed the applicant ’ s defence lawyer that he had been provided with inpatient treatment for tuberculosis at the SIZO. They specified that “the applicant [had] received anti-tuberculosis medicines of the 1st group”. The nature of the treatment was not described more specifically.

13 . On 28 September 2011, as a result of a serious deterioration in his health, the applicant lost consciousness. He experienced strong chest pain. He was given some urgent treatment by an ambulance team and remained at the SIZO.

14 . In the course of his pre-trial detention the applicant ’ s health deteriorated further. He was transported to various medical facilities for examination, notably on 15, 18, 20 and 21 October and 1 December 2011. In the course of one such examination on 18 October 2011 the applicant was diagnosed with a pancreatic tumour. It was recommended that he undergo special inpatient treatment for his tuberculosis. Allegedly, he did not then receive any treatment in respect of his diseases.

15 . By letters dated 15 and 26 December 2011 the SIZO governor informed the Genichesk District Court (“the trial court”) of the applicant ’ s state of health and noted that the applicant could not be treated at the SIZO as it was not properly equipped for that purpose.

16 . On 1 February 2012 the trial court remitted the criminal case against the applicant for further pre-trial investigation and released the applicant, owing, inter alia , to his state of health.

17 . Once he was at liberty the applicant ’ s state of health continued to deteriorate. He received both inpatient and outpatient treatment, notably on 7 February and from 2 to 9 March 2012. In a medical certificate, which is undated (but allegedly issued on 7 May 2012), the applicant was diagnosed with HIV, stage IV. According to a medical certificate of 14 May 2012, a deterioration in the applicant ’ s lungs was identified.

18 . According to a medical certificate issued on 21 September 2012, the applicant ’ s treatment had become complicated as the disease had developed resistance to anti-tuberculosis medicines.

19 . On 20 September 2013 the trial court found the applicant guilty of drug offences and sentenced him to six years ’ imprisonment. Owing to his state of health, the trial court excused him from serving the sentence.

20 . On 30 March 2014 the applicant died of tuberculosis.

21 . The applicant stated that during his pre-trial detention he had been transported between the Zaporizhzhya SIZO and the premises of the Genichesk District Court on ten occasions, and twice between the Zaporizhzhya and Vilnaynsk SIZOs. He submitted that the transportation procedure usually started at 11 p.m. on the day before the journey was required. First, the applicant and the other inmates were transported in police vans to the railway station; then at around midnight he was placed in a train compartment, and travelled for three to four hours on the train; then he continued his journey in a police van. According to the applicant, the transportation process lasted the whole night. There was no food and water provided during the transportation procedure, nor was there a doctor present. He felt unwell during court hearings, which resulted in ambulances being called or the adjournment of court sessions.

22 . The applicant submitted a copy of the trial court ’ s letter addressed to the head of the Genichesk police authority allegedly responsible for the applicant ’ s transportation (received by the latter on 26 January 2012), in which the trial court asked that the applicant be provided with appropriate transportation, in view of his state of health, to the court hearing scheduled for 31 January 2012. It was mentioned in the trial court ’ s letter that the transportation expenses would be borne by the applicant ’ s relatives. The applicant also submitted a copy of a letter from the above-mentioned police authority, dated 26 January 2012, informing his mother that owing to the absence of any special transport arrangements the applicant would be transported on 29 January 2012 by railway, as usual.

23 . According to the information submitted by the Government, the applicant was transported from the SIZO to the court and back on the following dates:

(i) 3 April 2011, returning on 19 April 2011;

(ii) 27 April 2011, returning on 12 May 2011;

(iii) 18 May 2011, returning on 19 May 2011;

(iv) 22 June 2011, returning on 29 June 2011;

(v) 22 September 2011, returning on 29 September 2011;

(vi) 14 October 2011, returning on 21 October 2011;

(vii) 29 January 2012.

24 . The Government further submitted that transportation of the applicant was carried out by overnight trains in conditions which had been in accordance with the requirements of domestic legislation, including in relation to the provision of food during the trip.

25 . The relevant domestic and international material in respect of treatment of tuberculosis can be found in Logvinenko v. Ukraine (no. 13448/07, §§ 38, 41 and 49-50, 14 October 2010) .

26 . The relevant extracts from the World Health Organization (WHO) Guidelines on Treatment of Tuberculosis (1997) can be found in Vasyukov v. Russia (no. 2974/05, § 50, 5 April 2011).

27 . International and domestic materials concerning conditions of detention and transportation of detainees can be found in Koktysh v. Ukraine (no. 43707/07 , §§ 39-42, 10 December 2009).

THE LAW

28 . The Court notes at the outset that the applicant died while the case was pending before the Court. His mother, Ms Ludmyla Stryukova, informed the Court that she wished to pursue his application. In a number of cases relating to Article 3 of the Convention in which an applicant died in the course of the proceedings the Court has taken into account the statements of the applicant ’ s heirs or of close family members expressing the wish to pursue the proceedings (see, for example, Dimitar Krastev v. Bulgaria , no. 26524/04, § 42, 12 February 2013, with further references). It sees no reason to reach a different conclusion in the present case and therefore accepts that Ms Ludmyla Stryukova can pursue the application initially brought by the applicant.

29 . The applicant complained, under Article 3 of the Convention, that he had not been provided with adequate medical treatment and assistance while in detention and that the conditions of his transportation from the SIZO to court hearings and back and between detenti on facilities had been poor. He further complained, under Article 13 of the Convention, that he had not had an effective domestic remedy for his complaints under Article 3 of the Convention. Articles 3 and 13 of the Convention 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.”

30 . The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

(a) Medical treatment provided to the applicant while in detention

31 . The applicant submitted that the medical treatment provided to him had not met the requirements of Article 3 of the Convention.

32 . The Government stated that they were not in possession of the applicant ’ s medical file which had been transferred with the applicant on 29 January 2012 (see paragraph 23 above) and had not been returned to the SIZO after his release. They further commented on the merits of the complaint and submitted that the applicant had been provided with proper and adequate medical treatment.

33 . The applicable general principles in respect of medical treatment in detention have been summarised in Hummatov v. Azerbaijan (nos. 9852/03 and 13413/04, §§ 112 ‑ 22, 29 November 2007); Ukhan v. Ukraine (no. 30628/02, §§ 77 ‑ 83, 18 December 2008); Petukhov v. Ukraine ( no. 43374/02, §§ 91 ‑ 98, 21 October 2010); and Sergey Antonov v. Ukraine (no. 40512/13 , §§ 70 ‑ 75, 22 October 2015) .

34 . Turning to the circumstances of the present case, the Court notes that the medical condition that the applicant suffered from (see paragraph 8 above) was serious enough to affect his everyday functioning and to warrant his medical care being considered in the light of Article 3 of the Convention.

35 . It has not been disputed by the Government that while in the Genichesk temporary detention centre the applicant did not receive any treatment for his tuberculosis, despite his disease being in an active phase and the doctor ’ s recommendation for the applicant’s treatment (see paragraph 10 above).

36 . While in the SIZO, the applicant started receiving some treatment. However, apparently that treatment proved to be ineffective as his state of health deteriorated (see paragraphs 13 and 14 above). Furthermore, the Court takes note of another example of the apparent inefficiency of the authorities in providing treatment for the applicant, namely the information provided by the SIZO governor to the trial court that the SIZO had not been properly equipped to treat the applicant (see paragraph 15 above).

37 . In addition to the above-mentioned considerations, the Court cannot but note the long periods of the applicant ’ s transportation between the SIZO and the trial court between April 2011 and January 2012 (see paragraph 23 above). It seems that when making the seven round trips, each having an average duration of one to two weeks, the applicant was unable to receive the necessary treatment for his tuberculosis.

38 . The foregoing considerations are sufficient to enable the Court to conclude that the medical care provided to the applicant was not adequate. As a result of the inadequacy of the medical care provided to him, the applicant endured distress or hardship exceeding the unavoidable level of suffering inherent in detention, and his dignity was undermined.

39 . There has therefore been a violation of Article 3 of the Convention.

(b) Conditions of the applicant ’ s transportation

40 . The applicant reiterated his initial claim that the conditions of his transportation had been inappropriate given his state of health.

41 . The Government submitted that they could not provide any information in support of their arguments about the conditions of the applicant ’ s transportation because the time-limit for keeping the relevant documents had expired and the records had been destroyed. They, however, provided information about the dates on which the applicant had been transported to and from court hearings and information about the conditions of his transportation (see paragraphs 23 and 24 above).

42 . The Court notes that the parties do not dispute that the applicant was transported between the SIZO and the court on the dates mentioned in paragraph 23 above. It further observes, based on the material on file and the parties ’ submissions, that the conditions complained of appear to have been similar to those which were sharply criticised by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment during its visits to Ukraine. Similar factual submissions also gave rise to the finding of a violation of Article 3 in the Court ’ s judgments in Yakovenko v. Ukraine (no. 15825/06, §§ 105-13, 25 October 2007) and Andrey Yakovenko v. Ukraine (no. 63727/11, §§ 100-03, 13 March 2014).

43 . In the light of the foregoing and having particular regard to the applicant ’ s state of health during the period under consideration, the Court does not see any reason to take a different approach in the present case and considers that the conditions of the applicant ’ s transportation were in breach of Article 3 of the Convention.

44 . The Government disputed the applicant ’ s submissions and argued that there had not been a violation of Article 13 of the Convention.

45 . The Court reiterates that it has already found a violation of Article 13 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning conditions of detention and a lack of medical treatment (see, among other authorities, Melnik v. Ukraine , no. 72286/01, §§ 113-16, 29 March 2006; Dvoynykh v. Ukraine , no. 72277/01, § 72, 12 October 2006; Ukhan , cited above, §§ 91-92; Iglin v. Ukraine , no. 39908/05, § 77, 12 January 2012; and Barilo v. Ukraine , no. 9607/06 , §§ 104-05 , 16 May 2013 ). It sees no reason to decide otherwise in the present case.

46 . The Court therefore concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant ’ s complaints under Article 3 of the Convention.

47 . 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.”

48 . The applicant ’ s mother claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage.

49 . The Government did not comment on that claim.

50 . Making its assessment on an equitable basis, the Court awards the applicant ’ s mother EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

51 . The applicant ’ s mother also claimed EUR 1,680 for the costs and expenses incurred before the Court. She asked that they be paid directly into the representative ’ s bank account.

52 . The Government did not comment on that claim.

53 . Regard being had to the documents in its possession and to its case ‑ law, the Court awards EUR 1,000 under this head. This amount is to be paid directly into the bank account of the representative, Ms O. Sapozhnikova, as requested by the applicant ’ s mother (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12 , § 288, 15 December 2016).

54 . 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, 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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, this amount to be paid to the applicant ’ s mother, Ms Ludmyla Stryukova;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant ’ s mother, in respect of costs and expenses, this amount to be paid into the bank account of his representative, Ms O. Sapozhnikova;

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

Milan Blaško Síofra O ’ Leary Deputy Registrar President