Communicated on 18 February 2021 Published on 8 March 2021

FIFTH SECTION

Application no. 21480/16 Olena Anatoliyivna GLISHCHYNSKA against Ukraine lodged on 20 April 2016

STATEMENT OF FACTS

The applicant, Ms Olena Anatoliyivna Glishchynska , is a Ukrainian national, who was born in 1974 and lives in Moscow. She is represented before the Court by Mr M. Tarakhkalo and Ms O. Protsenko , lawyers practising in Kyiv.

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

On 29 April 2015 an investigator of the Security Service of Ukraine arrested the applicant, the director of a local radio in Odesa, on suspicion of preparing an attack on the territorial integrity and inviolability of Ukraine coupled with incitement to national hatred (Article 14 § 1 and Article 110 § 2 of the Criminal Code). More specifically, she was suspected of having tried, as part of a conspiracy with some other persons, to create a separatist movement aimed at proclaiming an independent entity on the basis of several districts in the Odesa region. The applicant was arrested after a police search at her home had discovered various materials pertaining to organisation of the above-mentioned movement.

The applicant ’ s pre-trial detention (ordered by the Odesa Prymorskyy District Court on 1 May 2015) was extended on many occasions. The domestic courts justified that measure by the gravity of the charges against her and the inherent risk of absconding, extensive incriminating evidence, as well as the impossibility to apply a non-custodial preventive measure under Article 176 § 5 of the Code of Criminal Procedure (“the CCP”). The applicant submitted the following arguments in support of her requests for release: that she had strong social ties in her place of residence, enjoyed an excellent reputation and had no criminal record; that her health required permanent medical monitoring and her continued detention would jeopardise the health and life of her unborn baby; and, lastly, that she had elderly parents and two minor children. All those arguments, however, were found irrelevant in light of Article 176 § 5 of the CCP prohibiting the application of non-custodial preventive measures where there was a charge of separatism.

On 13 June 2016 the applicant was released and moved to Moscow as part of an exchange of detainees agreed through negotiations between Ukraine and Russia.

The applicant was detained in a cell of 7 sq. m. with two other inmates. The sanitary conditions were allegedly appalling. The nutrition was meagre and non-compliant with basic hygiene standards.

The applicant was allegedly deprived of daily outdoor walks once the SIZO administration became aware of her pregnancy (see below).

On several occasions the applicant was allegedly taken to a “waiting box” where she was held for more than eight hours, in a cold temperature and without basic facilities.

(a) In respect of the applicant ’ s pregnancy

The applicant became pregnant while in detention (at the age of 41; already a mother of two).

Following complaints of abdominal pain and bleeding, on 21 October 2015 she was taken to the city maternity hospital, where she was diagnosed with a risk of miscarriage (at about the twelfth week of pregnancy). The doctor concluded that the applicant ’ s condition warranted constant monitoring.

There was no gynaecologist in the Odesa SIZO. The applicant underwent further medical examinations/treatment in the maternity hospital on 18 November and 15-18 December 2015 and on 2-4 February, 26 February and 1 April 2016. She was allegedly shackled to a gynaecological examination chair during each examination.

During the entire duration of her pregnancy there was a risk of miscarriage and, starting from early February 2016, there was a risk of premature delivery. The foetus was found underdeveloped due to lack of oxygen and nutrients.

On 21 April 2016 the Court indicated to the Government, under Rule 39 of the Rules of Court, that the Government should “secure the applicant ’ s immediate and high-quality medical examination and provide her with appropriate medical care, including transfer to a maternity hospital”.

On 27 April 2016 the applicant was transferred to the maternity hospital where on the same date she gave birth to a boy. He had various serious health problems (see below).

(b) In respect of other health issues

In 2010 the applicant had two surgeries for malignant melanoma. Since then, she had to be examined by a cancer specialist twice per year.

The applicant was not, however, provided with the possibility to consult a cancer specialist during the period from 29 April 2015 until 19 May 2016.

On 6 May 2016 the applicant ’ s newly born son was placed in the neonatal intensive care unit of the city paediatric hospital on account of various health concerns. The applicant was transferred back to the Odesa SIZO.

In reply to her complaint about having been separated from her baby who had just started breastfeeding, on 13 May 2016 the Prymorskyy Court held (in its ruling extending the applicant ’ s pre-trial detention for another month) that the interests of the baby requiring medical treatment prevailed over the mother ’ s right to keep the baby with her. It also noted that it was impossible to accommodate the applicant in the hospital for various reasons given by the hospital administration.

In June 2016, after their arrival to Moscow, the applicant ’ s baby underwent complex medical examinations. He was diagnosed with intrauterine brain damage, congenital heart disease, Down syndrome, hepatitis and blood infection.

On 2 October 2019 he died.

The relevant provisions of the Criminal Code (2001) read as follows:

Article 14. Preparations for a crime

“1. Preparations for a crime consist in searching for or adjusting tools or instruments, or searching for accomplices, or conspiring, or removing obstacles, or otherwise creating conditions for commission of a crime.”

Article 110. Attack on the territorial integrity and inviolability of Ukraine

“1. Deliberate actions aimed at changing the territory or the state border of Ukraine in breach of the procedure established by the Constitution of Ukraine, as well as public calls or dissemination of materials containing public calls for such actions, shall be punished by imprisonment of three to five years, with or without property confiscation.

2. The same actions committed by a public official, or repeatedly, or as part of a conspiracy by a group of persons, or coupled with incitement to national or religious hatred, shall be punishable by imprisonment of five to ten years, with or without property confiscation ...”

The relevant provisions of the Code of Criminal Procedure (2012), as well other pertinent material regarding those provisions, can be found in Grubnyk v. Ukraine (no. 58444/15, §§ 40-44 and 53, 17 September 2020).

COMPLAINTS

The applicant complains under Article 3 of the Convention about: the overcrowding and poor material conditions of detention in the Odesa SIZO; the lack of adequate medical care in detention; and her shackling to a gynaecological examination chair in the maternity hospital. She also complains, relying on Article 5 of the Convention, that her pre-trial detention was not justified by relevant and sufficient reasons and that the domestic courts did not examine the possibility of any non-custodial preventive measures and disregarded all her arguments in favour of release (the applicant additionally relies on Article 6 of the Convention in this regard). Lastly, she complains under Article 8 of the Convention about her separation from her newly born baby for about a month.

QUESTIONS TO THE PARTIES

1. Did the material conditions of the applicant ’ s detention in the Odesa SIZO amount to inhuman or degrading treatment contrary to Article 3 of the Convention?

2. Was the medical care provided to the applicant in detention in compliance with the requirements of Article 3 of the Convention?

3. Was the applicant shackled to a gynaecological examination chair in the maternity hospital? If so, was that measure compatible with Article 3 of the Convention (see Korneykova and Korneykov v. Ukraine , no. 56660/12, §§ 106-16, 24 March 2016)?

4. Did the domestic courts provide relevant and sufficient reasons in justification of the applicant ’ s pre-trial detention, as required by Article 5 § 3 of the Convention (see Grubnyk v. Ukraine , no. 58444/15, §§ 110-30, 17 September 2020)?

5. Was the applicant ’ s separation from her newly born son, from 6 May to 13 June 2016, in compliance with Article 8 of the Convention?