FIFTH S ECTION

CASE OF SAVINOV v. UKRAINE

( Application no. 5212/13 )

JUDGMENT

STRASBOURG

22 October 2015

FINAL

22/01/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Savinov v. Ukraine ,

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

Josep Casadevall, President, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Helena Jäderblom, Aleš Pejchal, Síofra O ’ Leary, judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 29 September 2015 ,

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

PROCEDURE

1 . The case originated in an application (no. 5212/13) 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 Volodymyrovych Savinov (“the applicant”), on 21 January 2013 .

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

3 . The applicant alleged that he had not been provided with adequate medical assistance in detention between 30 December 2006 and 18 March 2013, and that he had had no effective remedy in respect of this complaint .

4 . On 18 March 2013 the Court decided to indicate to the Government, under Rule 39 of the Rules of Court, that the Government had to secure “immediately, by appropriate means, appropriate medical treatment for the applicant, relevant to his HIV status ”.

5 . On 8 July 2013 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible . On the same day the Court discontinued the indication made to the Government under Rule 39.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1970 . According to the most recently available information, in June 2013 the applicant moved to the town of Illichivsk, Ukraine , after being released from detention. He did not inform the Court of his current whereabouts.

A. Criminal proceedings against the applicant

7 . According to the information submitted by the Government, on 21 August 2006 the Illichivskyy Town Court conditionally sentenced the applicant to two years ’ imprisonment for drug - related offences. O n the same da y the same court remanded the applicant in custody pending trial, since t he applicant was also suspected of committing a theft.

8 . On 29 May 2007 the Illichivskyy Town Court sentenced the applicant to one year ’ s imprisonment for theft.

9 . On 25 June 2008 the same court convicted the applicant of inflicti ng grievous bodily harm and sentenced him to eight and a half years ’ imprisonment. Since the applicant had previous unserved convictions the total term was established as nine years ’ imprisonment.

B. The a pplicant ’ s detention and medical treatment

10 . According to the Government, the applicant tested positive for the human immunodeficiency virus (“HIV”) as early as 19 9 6. According to the available information, while at liberty the applicant spent time in a n infectio us diseases department of a hospital (diagnos is unspecified) on one occasion on 18-22 September 2003 .

11 . On 30 December 2006 the applicant was arrested and placed in the Illichivsk yy Pre-trial D etention F acility ( ізолятор тимчасового тримання Іллічівського міського відділу Головного управління Міністерства внутрішніх справ України в Одеській області ) . The Government submitted that it was impossible to establish the exact period of the applicant ’ s stay in th at facility , since all the relevant documents had already been destroyed.

12 . Between 15 January 2007 and 25 December 2008 the applicant was detained in the Izmayilskyy Temporary Detention Centre ( Ізмаїльський слідчий ізолятор ) (“the SIZO”) . He was also there between 10 March and 4 May 2009 .

13 . According to the Government, on 15 January 2007 the applicant was examined and it was established that he was “ practically healthy”. During his stay in the SIZO the applicant underwent examinations and received medical treatment as follow s: o n at least three occasions in 2007 and 2008 the applicant underwent chest X-rays (lungs and heart : no pathologies revealed) and had one blood test (RW , negative) . In July and November 2008 he was also examined by a paramedic and diagnosed with prostatitis. The applicant was prescribed medication.

14 . Between 26 December 2008 and 10 March 2009 the applicant was serving a sentence in Odessa Correctional Colony No. 14 ( Одеська виправна колонія №14 ) . He was also there between 5 May 2009 and 5 September 2012.

15 . In Odessa Correctional Colony No. 14 the applicant received the following treatment : i n March 2009 the applicant was examined and found to be “practically healthy”. In December 2009 the applicant had a viral respiratory infection. In January and September 2011 the applicant was examined by a general practitioner. On a later date the applicant was diagnosed with thrombophlebitis and prescribed treatment. On two occasions , in 2011 and 2012 , the applicant was X-rayed ; no pathologies were found.

16 . Between 23 November and 3 December 2011 the applicant was in a medical ward with a diagnos is of thrombophlebitis. In November 2011 the Odessa Colony ’ s authorities e nquired about the applicant ’ s HIV status with the Odessa Regional State Sanitary-Epidemiological Service. On 23 November 2011 t he answer was received that the applicant had been diagnosed HIV -positive in 1996.

17 . On 4 May 2012 the applicant was diagnosed HIV -positive by a general practitioner.

18 . In July-August 2012 the applicant had numerous blood tests , including a CD4 + cell count with a result of 74 cells. On 12 August 2012 the applicant was diagnosed HIV -positive at clinical stage 4 , with tuberculosis of the lymph glands and oropharyngeal candid ia sis. It was noted that the applicant was in a critical condition. On 30 August 2012 the applicant was prescribed anti-tuberculosis treatment.

19 . Between 7 September and 12 October 2012 the applicant was in the infectious diseases department of the Dariyivska Correctional Colony Hospital ( інфекційне відділення міжобласної багатопрофільної лікарні при Даріївській виправній колонії № 10 Херсонської області ). The applicant underwent numerous blood and urine tests, X-ray s and other tests needed for his tuberculosis diagnos is and treatment. He also had a CD4+ cell count , with a result of 98 cells . The applicant was examined by doctors and prescribed treatment. Upon discharge from the department the applicant was diagnosed with HIV clinical stage 4, tuberculosis of the lymphatic glands , candidia sis, leycopenia, weight loss (8%), chronic hepatitis , and chronic pancreatitis. It was recommended that he consult an infectio us diseases specialist in order to be prescribe d antiretroviral therapy (“ART”).

20 . On 12 October 2012 the applicant arrived at the Interregional Specialised Tuberculosis Hospital of Goloprystanska Correctional Colony No. 7 ( міжобласна спеціалізована туберкульозна лікарня при Голопристанській виправній колонії №7 ) . He was diagnosed with tuberculosis of the peripheral lymph nodes, weight deficit of 8%, anaemia , leukopenia, chronic hepatitis in the unstable remission phase , and chronic pancreatitis in remission. There the applicant underwent various examinations and was prescribed treatment, in particular for his tuberculosis .

21 . On 26 October 2012 the applicant was examined by an infectio us diseases specialist and diagnosed with HIV at clinical stage 4 and tuberculosis of the peripheral lymph nodes. In November-December 2012 the applicant was examined by a surgeon , diagnosed with after-thrombophlebitis syndrome of both legs in o edema-ulcerous form and prescribed treatment. The applicant had further examinations and tests between November 2012 and January 2013. In particular, the applicant had a CD4 cell count on 21 November 2012 (44 cells , or 18.4%) .

22 . According to the Government, on 17 December 2012 the applicant was examined by an infectio us diseases specialist and requested ART, however, ART was not possible for lack of available medication. T he Head of the Golaprystanska Colony requested a specialised public medical institution for A ids prevention and treatment based in Ode s sa to provide the necessary ART medication. By a letter dated 15 January 2013, the request was refused on the ground that it was for the prison to provide such medication for inmates. It was also stated that once the applicant was released he would be provided with adequate medical assistance.

23 . It appears from the available material in the case file that the medication for the applicant ’ s antiretroviral therapy was eventually provided by a n NGO in an amount enabling the treatment to last until February 2013. Subsequently, the applicant has continued receiving the necessary medication .

24 . On 4 and 25 Fe bruary 2013 the Head of the Golaprystanska Correctional Colony lodged with the Gola prystanskyy District Court two requests under Article 84 of the Criminal Code for the applicant ’ s release, stating that the applicant was suffer ing from A ids and had other serious health problems. The requests were based on the reports of a medical commission, according to which the applicant ’ s diseases formed part of the list of health problems for which prison authorities could seek prisoners ’ release.

25 . On 11 February and 11 March 2013 respectively the court re fused both requests , principally on the grounds that the applicant had been repeatedly convicted of serious crimes (the most recent having been an assault o n his mother resulting in her death ) and while imprisoned he had been disciplined for violating prison regulations on twelve occasions, which demonstrated that he engaged in persistent anti-social behaviour and did not wish to improve. According to the court, the applicant continued to be a danger to society. In its decision of 11 February 2013, the court also noted that it did not follow from the prison governor ’ s request that the applicant ’ s A ids diagnos is had been established by the relevant specialist. Moreover, the re is no information that the applicant has relatives or anyone close to him who could or would take care of him if he were at liberty.

26 . On 15 March 2013 the applicant ’ s CD4+ cell count was 129.

27 . On 25 March 2013 the Government submitted medical information, according to which the applicant ’ s state of health was of medium severity. His HIV and tuberculosis diagnoses were confirmed , and it was noted that the applicant was also suffer ing from hyperthermia, chronic hepatitis, chronic pancreatitis, post-t h rombophlebi ti c syndrome, anaemia, serious immunosuppression, weight loss, and diarrh o ea. The applicant remained under constant supervision by tuberculosis and infectio us diseases specialist s at the Goloprystanska Colony , and received ART and anti- tuberculosis treatment and also symptomatic treatment and vitamins.

28 . On 22 April 2013 the Goloprystanskyy District Court re fused a new request from the h ead of the c olony to release the applicant in view of his health condition. It was noted that the applicant had A ids and a number of serious health problems . The court, however, concluded that the applicant had numerous convictions for committing, inter alia , serious crimes. He has been reprimanded on numerous occasions while in detention. The court has already twice re fused similar requests for release , and there was no evidence that the applicant ’ s state of health had worsened in compari so n to the time when the last request had been rejected.

29 . On 20 June 2013 the Kherson Regional Court of Appeal quashed this decision and decided to release the applicant in view of his serious health problems .

30 . On 26 June 2013 the applicant was released.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND MATERIALS

31 . Article 84 of the Criminal Code provides, inter alia , that convicts who , after committing a crime or after the delivery of a verdict , contract serious diseases preventing them from serving their sentences, may be released from punishment. When dealing with such matters the court shall take into account the seriousness of the crime, the nature of the disease, the personality of the convict , and other circumstances of the case.

32 . Other relevant domestic law and international and domestic materials 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

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

33 . The applicant complain ed under Article 3 of the Convention that he ha d been subjected to torture , as the authorities ha d failed to provide him with adequate medical ass istance between December 2006 and March 2013 . The Article he relied on reads as follows:

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

A. Admissibility

34 . The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaints. In particular, the applicant should have lodge d his complaints before the prosecutor ’ s office which was competent to monitor the observance of correct application of legal acts in detention facilities. The prosecutor ’ s decisions in this respect are mandatory and should be enforced immediately. The applicant did not complain to a prosecutor about the absence of adequate medical assistance.

35 . The applicant maintained that the medical staff had been aware of his condition but he had needed treatment in a specialised hospital.

36 . The Court notes that it has already dismissed similar objections based on non-exhaustion, finding the remedy referred to by the Government ineffective on the grounds that it had not been shown that recourse to such proceedings could have brought about an improvement in the applicants ’ detention conditions (see Melnik v. Ukraine , no. 72286/01, §§ 69, 28 March 2006; more recently, Buglov v. Ukraine, no. 28825/02 , § 74, 10 July 2014 ) and sees no reason to depart from that finding in the present case. The Court therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies .

37 . The Court considers nevertheless that the applicant ’ s complaint in respect of the period between December 2006 and November 2011 is inadmissible for the following reasons.

38 . The Court notes that in the present case the applicant had been HIV ‑ positive for nearly twenty years. The applicant maintained that he had informed the detention authorities about his HIV status when he was placed in detention in December 2006; the parties did not however submit any evidence to support or to rebut this statement. Even assuming that the authorities of the Illichivsk pre-trial detention facility were aware of the applicant ’ s HIV status, the Court observes that the applicant stayed in the Illichivsk pre-trial detention facility for a maximum of two weeks before being transferred to the SIZO and later to Odessa Correctional Colony No. 14.

39 . In respect of the medical assistance received by the applicant between January 2007 and November 2011, the Court notes that the applicant did not submit any evidence that he had had any treatment before his placement in detention which needed to be continued, that he had informed the doctors in the SIZO and in Odessa Correctional Co lony No. 14 about his health problems, or that he had had any health complaints which had not been properly addressed.

40 . It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

41 . The Court further notes that the applicant ’ s complaint in respect of the period between November 2011 and March 2013 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.

B. Merits

42 . The Government maintained that while in detention the applicant had been provided with the necessary medical assistance. The Government noted that there was no evidence that “ before August 2013 ” the applicant had informed the detention facilities ’ administration about his HIV status . However, the applicant has been HIV-positive for a considerable period of time , and while at liberty he was not having any treatment. Once the applicant ’ s state of health worsened, he had a number of examinations and was placed in a specialised hospital. There he was supervised by doctors and provided with the necessary medication in full. In particular, the applicant was diagnosed with tuberculosis in August 2012 and provided with the necessary treatment. Therefore, there was no breach of Article 3 of the Convention in the applicant ’ s case.

43 . The applicant maintained that no treatment had been provided to him until his state of health had significantly deteriorated. The applicant alleged that the p rison authorities had t ried to conceal the real situation. I n particular, in mid-March 2013 he was requested to sign a paper stating that his CD4 + cell count was 120 , which he knew not to be true. The applicant further stated that the medication which had been prescribed to him was never actually administered. In particular, the Government did not submit any evidence in support of their statement that the applicant had received the prescribed medication.

44 . The Court has emphasised on a number of occasions that the State must ensure that a person is detained in conditions which are compatible with respect for human dignity and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see KudÅ‚a v. Poland [GC], no. 30210/96, § § 92-94, ECHR 2000 ‑ XI ). A lack of appropriate medical care may thus amount t o treatment contrary to Article 3 of the Convention (see, among many authorities, Hummatov v. Azerbaijan , nos. 9852/03 and 13413/04, 29 November 2007 ; Ukhan v. Ukraine , no. 30628/02, 18 December 2008; and Petukhov v. Ukraine , no. 43374/02 , 21October 2010 ).

45 . Other relevant principles determined by the Court in its case-law as regards Article 3 of the Convention in respect of medical treatment in detention are summarised in the case of Sergey Antonov v. Ukraine ( cited above , §§ 70-75 ).

46 . The C ourt notes that f rom November 2011 the applicant ’ s state of health apparently worsened , and he was placed in a medical ward. A t that time the Odessa Colony authorities e nquired o f their own motion about the applicant ’ s HIV status and received confirmation that the applicant was HIV positive .

47 . The Court observes that despite the information received the applicant ’ s first CD 4+ cell count was performed more than seven months later , and despite the low cell count thus identified and the diagnos is of HIV at clinical stage 4 the applicant started receiving the ART at the end of December 2012 , apparently through the assistance of a specialised NGO. This inactivity in itself amounts to inhuman and degrading treatment contrary to Article 3 of the Convention.

48 . In respect of the applicant ’ s statements that he did not receive the prescribed medication , the Court reiterates that an unsubstantiated allegation of no, delayed, or otherwise unsatisfactory medical care is normally not sufficient to disclose an issue under Article 3 of the Convention. A credible complaint should normally include, among other things, sufficient reference to the medical condition in question, medical prescriptions that were sought, made or refused, and some evidence – for instance, expert reports – capable of disclosing serious failings in the applicant ’ s medical care (see Valeriy Samoylov v. Russia , no. 57541/09 , § 80, 24 January 2012).

49 . The Court further notes that it has already examined a large number of cases against Ukraine raising complaints of inadequate medical services afforded to inmates (see, most recent ly, Barilo v. Ukraine, no. 9607/06 , 16 May 2013 , and Kushnir v. Ukraine, no. 42184/09 , 11 December 2014 ). In the absence of an effective remedy in Ukraine to air those complaints (see paragraphs 58 - 59 below), the Court has been obliged to perform a first-hand evaluation of evidence before it to determine whether the guarantees of Article 3 of the Convention have been respected.

50 . In this respect the Court reiterates that where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny” (see Nechiporuk and Yonkalo v. Ukraine , no. 42310/04 , § 148, 21 April 2011 ). However, this task is especially complicated by the need to assess evidence calling for expert knowledge in various medical fields. In this connection the Court emphasises that it is sensitive to the subsidiary nature of its role, and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). The Court further reiterates that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether the applicant in fact required such treatment during the relevant period (see E.A. v. Russia , no. 44187/04 , § 57, 23 May 2013 ) and whether the choice of treatment methods appropriately reflected the applicant ’ s needs (see Ukhan, cited above, § 76, and Okhrimenko v. Ukraine , no. 53896/07, § 71, 15 October 2009). In view of the above and p aying particular attention to the vulnerability of applicants in view of their detention, the Court considers that it is for the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention.

51 . In line with the principles mentioned above, the Court notes that the evidence submitted by the Government in support of their statement that the applicant ’ s medical care had been adequate and that he had received the prescribed medication in full is unsatisfactory. The copy of the applicant ’ s medical file is of very poor quality, very often unreadable , and the information in it is very vague and fragmented. In particular, it is impossible to conclude which complaints of the applicant were addressed and to establish to what extent the prescriptions were followed through.

52 . The Court reiterates that the issues of inadequate medical assistance for people with HIV in the Ukrainian detention facilities have been already addressed by the Court in a number of cases (see Kats and Others v. Ukraine , no. 29971/04, 18 December 2008; Pokhlebin v. Ukraine , no. 35581/06, 20 May 2010; and Salakhov and Islyamova v. Ukraine, no. 28005/08, 14 March 2013). The overall situation in respect of treatment for people with HIV in those facilities is also addressed in the case of Sergey Antonov v. Ukraine (no. 40512/13, 22 October 2015) .

53 . In view of the above and, in particular, given the failure of the SIZO authorities to promptly provide appropriate treatment for the applicant ’ s HIV infection, the Court concludes that between November 2011 and March 2013 the applicant was not provided with adequate medical assistance while in detention , which amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

54 . The applicant complained that he had no effective domestic remedy in respect for his complaint under Article 3 of the Convention. He relied on Article 13 of the Convention, which reads as follows:

“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.”

A. Admissibility

55 . The Government did not submit any observations as to the admissibility of this complaint.

56 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

57 . The parties did not submit any observations as to the merits of this complaint.

58 . The Court points out that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. With reference to its earlier case-law (see, among other authorities, Melnik , cited above, §§ 113-16, and Dvoynykh v. Ukraine , no. 72277/01, § 72, 12 October 2006), its recent findings (see Barilo , cited above, § § 104-05 ) , and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had in practice an opportunity to obtain effective remedies for his complaint, that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.

59 . The Court concludes, therefore, 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 complaint in respect of the lack of appropriate medical assistance.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

60 . 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

61 . The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

62 . The Government maintained that there had been no violation of the applicant ’ s rights in the present case, so his claims were groundless. In any event, the Government considered the applicant ’ s claims excessive.

63 . T he Court, ruling on an equitable basis, awards the applicant EUR 10 ,000 in respect of non-pecuniary damage.

B. Costs and expenses

64 . The applicant also claimed EUR 910 for costs and expenses.

65 . The Government submitted that the amount claimed was excessive and that the services indicated in the legal representation agreement provided by the applicant did not correspond to the actual services provided.

66 . 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, the applicant ’ s lawyer, who represented the applicant throughout the proceedings before the Court, submitted a copy of a legal assistance agreement with the applicant, according to which the lawyer was to represent the applicant at the national level and prepare an application to the Court. R egard being had to the documents in its possession and the above criteria , the Court considers it reasonable to award the amount claimed .

C. Default interest

67 . 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 applicant ’ s complaint under Article 3 of the Convention about inadequate medical treatment between December 2006 and November 2011 inadmissible and the remainder of the application admissible;

2 . Holds , that there has been a violation of Article 3 of the Convention in respect of the failure to provide the applicant with adequate medical treatment between November 2011 and March 2013 ;

3 . Holds , that there has been a violation of Article 13 of the Convention on account of the lack of effective remedies in respect of the lack of medical assistance complained of ;

4 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with A rticle 44 § 2 of the Convention , 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;

(ii) EUR 910 ( nine hundred and ten 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 22 October 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Josep Casadevall Registrar President