FOURTH SECTION

CASE OF MEDYANIKOV v. UKRAINE

( Application no. 31694/06 )

JUDGMENT

STRASBOURG

19 February 2019

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

In the case of Medyanikov v. Ukraine ,

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

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

Having deliberated in private on 29 January 2019 ,

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

PROCEDURE

1 . The case originated in an application (no. 31694/06) 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 Eduard Valeryevich Medyanikov (“the applicant”), on 1 9 September 2006 .

2 . The applicant was represented by Mr T.O. Kalmykov , a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna of the Ministry of Justice.

3 . On 11 January 2011 notice of the application was given to the Government. On 30 November 2017 notice of the complaints under A rticles 3 and 34 of the Convention, concerning the alleged lack of access to adequate medical treatment in detention and the alleged hindrance of the right of individual petition , was given to the Government . The remainder of the application, including the complaints concerning the fairness of the criminal proceedings against the applicant, was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4 . The Government objected to the examination of the application by a Committee. H aving considered the Government ’ s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1972 and is currently serving a life sentence in Ladyzhynska c olony no. 39 (“the c olony”) .

A . Background to the case

6 . On 25 November 2004 the Donetsk Regional Court of Appeal convicted the applicant of several crimes and sentenced him to life imprisonment and ordered confiscation of all his property. On 23 February 2006 the Supreme Court upheld that judgment with certain changes.

7 . Since 26 August 2003 the applicant has been detained in various detention facilities , initially pending the criminal investigation against him and his trial, and subsequently after sentencing .

B . Medical treatment of the applicant ’ s tuberculosis

8 . On 26 August 2003 the applicant was placed in a temporary detention facility in Donetsk ( SIZO No. 5) for the duration of the criminal proceedings against him. On 25 January 2007 he was diagnosed with tuberculosis. The case file contains other evidence to indicat e that 1 February 2007 w as the date of the tuberculosis diagnosis.

9 . Upon completion of the criminal proceedings, o n 16 March 2007 the applicant was transferred to the Ladyzhynska c olony .

10 . On 20 March 2007 a pre liminary examination of the applicant was conducted, together with laboratory tests and an X-ray. He was put under medical supervision owing to the residual effects of his tuberculosis.

11 . According to the Government, the applicant was under medical supervision and received the appropriate medical care for his tuberculosis. In particular, he had been examined on a regular basis by the c olony doctors between 20 March 2007 and 26 February 2018 and prescribed treatment . As a result of each course of treatment his health had improved. The Government did not specify the frequency of the applicant ’ s regular examination and treatment during that time.

C. M edical treatment of the applicant ’ s hepatitis C

12 . In December 2011 a blood test revealed that the applicant had contracted hepatitis C. According to the applicant, he was denied access to copies of the test results.

13 . According to the Government, on 28 February 2012 the applicant was examined by a c olony doctor who diagnosed him with chronic persistent hepatitis in remission. The applicant was prescribed treatment .

14 . On 16 May 2012 doctors from the Vinnytsya Regional Centre of Control and Prevention of HIV-A ids diagnos ed the applicant with hepatitis C in remission without hepatic impairment. According to the Government, the applicant was prescribed with symptomatic treatment and as a result of the treatment his health improved . The Government did not specify the nature of that treatment.

15 . According to the Government, the applicant was supervised by the c olony doctors and was prescribed with all necessary medicine and a special diet. The Government did not specify the frequency of the treatment or the nature of the die t provided to the applicant.

16 . The Government further submitted that from 23 February to 20 March 2015 the applicant had been under medical treatment in a multi- disciplinary hospital in Stryzhavska c orrectional c olony no. 81. As a result of the treatment his health had improved. The nature of that treatment was not specified .

17 . They also added that a s of 26 February 2018 the applicant remained under the ongoing supervision of the c olony doctors , and his state of health was satisfactory.

D . The application to the Court

18 . According to the applicant, during his detention he submitted numerous applications to the domestic authorities, including the Donetsk Regional Court of Appeal ( “ the Court of Appeal ” ) , seeking to obtain copies of various documents to be submit ted to the Court in substantiation of his application.

19 . He added that between August and November 2006 he requested that the Court of Appeal provide him with a copy of his indictment. His requests were refused on 8 August and 6 September 2006 on the grounds that he had already been provided with a copy of that document in the course of the criminal proceedings against him and that there was no legal requirement to meet his requests. Eventually, on 21 July 2008 a copy of that document was sent to the applicant.

20 . B etween April and August 2009 t he applicant requested that the Court of Appeal send him copies of several court records from his criminal case file as well as from that of his accomplice. Those requests were initially refused as not having a basis in law . According to the Government, o n 10 September 2009 the applicant lodged another application with the Court of Appeal in which he requested copies of court hearing records, the cassation appeal and other documents from his criminal proceedings case file. On 2 October 2009 the Court of Appeal sent the requested copies to the applicant , but exclud ed copies of the court hearing records , on the ground that their transmission was not covered by the legislation that was applicable at that time. On 21 April 2011 the Office of the Government Agent before the European Court of Human Rights sent copies of the court hearing records to the applicant.

21 . B y letters dated 12 and 17 January 2017, the Court of Appeal refused the applicant ’ s applications for a cop y of his request for an extension of the time-limit for lodging a cassation appe al against his conviction of 25 November 2004 and a copy of a court ruling of 26 October 2016 dismissing that request. The Court of Appeal specified that the applicant ’ s criminal case file had been sent to the Higher Speciali s ed Court of Ukraine for Civil and Criminal Matters upon the latter court ’ s request. The applicant has not been provided with a copy of the requested documents.

II. RELEVANT DOMESTIC LAW AND DOMESTIC AND INTERNATIONAL MATERIALS

22 . The relevant domestic law and domestic and i nternational materials in respect of treatment of hepatitis can be found in Sergey Antonov v. Ukraine ( no. 40512/13 , §§ 40 ‑ 56, 22 October 2015 ) .

23 . The relevant domestic and i nternational materials in respect of treatment of tuberculosis can be found in Logvinenko v. Ukraine ( no. 13448/07, §§ 38, 41, 49 ‑ 50, 14 October 2010 ) .

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

25 . The relevant provisions of domestic legislation and the relevant provisions of the Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules were summarised and quoted in the judgment in the case of Naydyon v. Ukraine (no. 16474/03, §§ 35 ‑ 38 and 41-42, 14 October 2010), which mainly concerned the failure of the authorities to provide the applicant with the opportunity to obtain copies of documents needed for his application before the Court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

26 . The applicant complained that he had been infected with tuberculosis and hepatitis C while in detention and that he had not received adequate medical treatment in respect of those diseases . 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.”

A. Admissibility

27 . The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other ground. The complaint should therefore be declared admissible.

B. Merits

1. The parties ’ submissions

28 . The applicant submitted that he had not received the necessary medical treatment and assistance for tuberculosis and hepatitis C while serving his sentence. He further disputed the veracity of the Government ’ s submissions in respect of the treatment provided to him . He stressed that all the Government ’ s statements concerning his health complaints had been followed by the conclusions “improvement” or “recovery” . As regards his treatment for hepatitis in Stryzhavska c orrectional c olony no. 81 (see paragraph 16 above), the applicant submitted that in fact the treatment had consisted of supportive therapy, and that some of the medicines that he had been able to take had been provided by his relatives. Lastly, he emphasi s ed that in 2007-2008 he had not received any treatment for tuberculosis.

29 . The Government submitted that throughout his detention , the applicant had been under constant medical supervision and had been provided with medical care and treatment. They further stressed that the treatment had been adequate since the applicant felt relief at the end of each course.

2. The Court ’ s assessment

30 . The Court has emphasised on a number of occasions that a lack of appropriate medical care in detention may amount to treatment contrary to Article 3 of the Convention (see, among many authorities, 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; and Petukhov v. Ukraine , no. 43374/02, §§ 91 ‑ 98, 21 October 2010).

31 . Other relevant principles determined by the Court in its case-law as regards Article 3 of the Convention and in respect of medical treatment in detention are summarised in the case of Sergey Antonov v. Ukraine (no. 40512/13 , §§ 70-75, 22 October 2015 ).

32 . The Court also observes that it has addressed the issue of inadequate medical assistance and protection against tuberculosis and hepatitis in Ukrainian detention facilities in a number of cases (see, for instance, Melnik v. Ukraine , no. 72286/01, §§ 104 ‑ 06, 28 March 2006 ; Yakovenko v. Ukraine , no. 15825/06, §§ 97 ‑ 102, 25 October 2007; Pokhlebin v. Ukraine , no. 35581/06 , §§ 63 ‑ 68 , 20 May 2010 ; Kondratyev v. Ukraine , no. 5203/09 , § 72, 15 December 2011; Kushnir v. Ukraine , no. 42184/09 , §§ 142 ‑ 49 , 11 December 2014 ; and Pivovarnik v. Ukraine , no. 29070/15, §§ 37 ‑ 46 , 6 October 2016 ).

33 . The main reasons for the Court to conclude in those cases that the applicants had not been provided with adequate medical care were the lack of promptness or unjustified delays in arranging medical examination, diagnosis or commencement of medical treatment (see Melnik , §§ 104 ‑ 05; Yakovenko , §§ 92-93 and 98 ‑ 100; Kushnir , §§ 144 ‑ 45; Kondratyev , § 87 ; and Pivovarnik, §§ 37 ‑ 46 , all cited above ) and the lack of qualified staff or equipment (see Yakovenko , cited above, §§ 96 ‑ 97 , and Temchenko v. Ukraine , no. 30579/10 , § 89, 16 July 2015 ).

34 . Turning to the circumstances of the present case, the Court notes at the outset that the medical conditions the applicant suffered from (see paragraphs 8 and 13 above) were serious enough to affect his everyday functioning. Therefore he could have experienced considerable anxiety as to whether the medical care provided to him was adequate.

35 . T he Court has not been provided with the applicant ’ s complete medical file. However, the applicant , in support of his complaint under A rticle 3 of the Convention, provided information as to the medical assistance he had received in detention, and supported this with, inter alia , extracts from his medical file. The Government provided no medical evidence in support of their allegations that th e medical assistance provided to him was adequate .

36 . Moreover, the information about the applicant ’ s medical treatment provided by the Government is of a very general nature , making it impossible for the Court to assess its relevance and effectiveness.

37 . T he Court reiterates in this respect that it is for the Government to provide credible and convincing evidence that an applicant received comprehensive and adequate medical care in detention (see, among others, Savinov v. Ukraine , no. 5212/13, § 50, 22 October 2015).

38 . It then notes that the applicant ’ s treatment appears to be ongoing, and that he has been treated for tuberculosis and h epatitis C for eleven years (see paragraph 11 above) and six years (see paragraphs 13 and 17 above) respe c tively . In the Court ’ s opinion , the fact that the applicant ’ s medical treatment has been ongoing for such a long time tend s to show that it was not accompanied by a comprehensive therapeutic strategy in compliance with the requirements of Article 3 of the Convention.

39 . Accordingly, the information available in the file do es not allow the Court to consider that the applicant has received adequate treatment for his tuberculosis and hepatitis C .

40 . In the light of the foregoing, the Court finds that the medical care provided to the applicant has been in adequate. As a result of the inadequacy of the medical care provided to him , the applicant has endured distress or hardship exceeding the unavoidable level of suffering inherent in detention, and his dignity was undermined.

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

II . ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

42 . The applicant complained that the national authorities had hindered his access to his criminal case file which was necessary to substantiate his application before the Court. He relied on Article 34 of the Convention, which provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

43 . The Government disagreed .

44 . The Court notes at the outset that it did not ask the applicant for the documents he referred to (see Chaykovskiy v. Ukraine , no. 2295/06 , § 94, 15 October 2009 , and contrast Naydyon v. Ukraine , no. 16474/03, §§ 24-26, 14 October 2010).

45 . In so far as the applicant complained that he had not been provided with copies of documents from his domestic criminal case file, the Court did not need any additional documents to reach the conclusion that his complaints relating to those proceedings were inadmissible (see paragraph 3 above) as his complaints in that regard: ( a) had in part clearly been lodged outside of the six-month period (contrast, for example, Naydyon , cited above, §§ 17 and 18); and (b) had in part been incompatible ratione materiae with the provisions of Article 6 of the Convention . Therefore, any difficulties in obtaining documents from that file, even if they were to be proven, were of no consequence for the applicant ’ s application before the Court (see Chaykovskiy , cited above, § 95).

46 . In view of the foregoing, the Court does not discern any appearance of hindrance of the applicant ’ s effective exercise of the right of individual petition.

47 . Accordingly, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

48 . 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.”

A. Damage

49 . The applicant claimed 3,000 euros (EUR) in respect of pecuniary damage which he had incurred to purchase medicines. He furthermore claimed EUR 10,000 in respect of non-pecuniary damage.

50 . The Government considered these claims unsubstantiated and excessive.

51 . The Court finds that the applicant ’ s claim in respect of pecuniary damage is not substantiated and is not supported with any documents ; it therefore rejects this claim. On the other ha nd, it awards the applicant EUR 3 ,000 in respect of non-pecuniary damage , plus any tax that may be chargeable .

B. Costs and expenses

52 . The applicant also claimed EUR 1 , 500 for legal costs incurred before the Court, EUR 50 for administrative expenses and EUR 250 for postal expenses.

53 . The Government considered the claims for legal costs unsubstantiated and unsupported with documents.

54 . 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 awards EUR 300 for the proceedings before the Court and EUR 50 for postal expenses, plus any tax that may be chargeable to the applicant .

C. Default interest

55 . 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,

1. Declares the application admissible;

2 . Holds that there has been a violation of Article 3 of the Convention;

3 . Holds that Ukraine has not failed to comply with its obligations under Article 34 of the Convention with respect to the refusal of the authorities to provide the applicant with copies of documents for his application to the Court ;

4 . Holds

(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 3 ,000 ( three thousand euros) , plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 350 ( three 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;

5 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 19 February 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Georges Ravarani Deputy Registrar President