FIFTH SECTION

Application no. 35888/11 Akhmed Khan Epsiyevich VAGAPOV against Ukraine lodged on 14 June 2011

STATEMENT OF FACTS

The applicant, Mr Akhmed Khan Epsiyevich Vagapov , is a Russian national, who was born in 1966 and is serving a sentence of imprisonment in Sofiyivska prison no. 45 in Dnipropetrovsk region. He is represented before the Court by Ms Yu. Dorofeyeva , a lawyer practising in Simferopol , and Mr A. Ismailov , the chairman of the “ Arqadaş ” human rights non-governmental organisation .

A. The circumstances of the case

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

1. C riminal proceedings against the applicant and his detention

The applicant is wheelchair-bound on account of a spinal cord injury (see below).

At the time of the events the applicant ’ s family owned a restaurant in Novofedorivka village in Crimea.

On 3 June 2010 there was an incident between the applicant and a local official, Mr P., whom the applicant blamed, in particular, for the power-supply cut-off of his restaurant. Namely, the applicant invited Mr P. to approach his car and once the latter did so, punched him in the face.

On 18 July 2010 the applicant telephoned Mr V., the investigator who had earlier detained his son as a suspect in a murder case. Mr V. complained to the prosecution authorities that the applicant had threatened him and his family should the charges against the applicant ’ s son not be dropped. According to the applicant, he simply enquired about the investigation in respect of his son.

On 20 July 2010 the Prosecutor ’ s Office of the Autonomous Republic of Crimea (“the Crimea Prosecutor ’ s Office”) instituted criminal proceedings against the applicant on suspicion of: firstly, having inflicted light-gravity bodily injuries on Mr P., and, secondly, threatening the law-enforcement official in relation to the latter ’ s professional duties.

On 21 July 2010 the applicant was arrested.

On 23 July 2010 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) remanded him in custody pending trial.

On 29 November 2010 the Zaliznychnyy District Court of Simferopol (further referred to as “the Zaliznychnyy Court”) found the applicant guilty as charged and sentenced him to three years ’ imprisonment suspended on probation for two years. The applicant admitted his guilt as regards the incident with Mr P., but denied any threats against Mr V. The court released the applicant subject to a commitment not to leave the town.

On 25 January 2011 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the verdict of 29 November 2010 and remitted the case for additional pre-trial investigation. It also remanded the applicant in custody having referred to “the seriousness and the nature of the criminal offences committed”. The applicant was detained in the court hearing.

On 5 March 2011 the Crimea Prosecutor ’ s Office rejected the applicant ’ s request for release as unfounded. It noted that there was convin cing evidence proving his guilt in the case involving Mr V. (whereas the applicant admitted his guilt in another case, with Mr P.). The prosecutor therefore concluded that the preventive measure could not be changed.

On 12 March 2011 the investigation was completed and the case was referred to the Zaliznychnyy Court for trial.

On 27 March 2011 the chairman of the “ Arqadaş ” NGO applied to the Crimea Prosecutor ’ s Office and the Prosecutor General ’ s Office for the applicant ’ s release.

On 19 April 2011 the Zaliznychnyy Court, to which the Prosecutor General ’ s Office had forwarded the aforementioned motion, wrote to the NGO that it was not a party to the proceedings and did not enjoy the right to lodge any motions.

On 11 May 2011 the Crimea Prosecutor ’ s Office replied to “ Arqadaş ” that it did not see any reasons for seeking the applicant ’ s release before the court.

On an unspecified date in June 2011 the applicant ’ s lawyer applied to the Zaliznychnyy Court for the applicant ’ s release subject to a commitment not to leave the town or to bail. She referred to the poor health of her client and the inadequacy of the conditions of his detention for his needs.

On 23 June 2011 the Zaliznychnyy Court found the applicant guilty of infliction of light-gravity bodily injuries and threatening a law-enforcement official, and sentenced him to three years ’ imprisonment, not suspended on probation. The court also decided to keep the applicant in detention as a preventive measure until the verdict bec a me final.

On 9 August 2011 and 19 January 2012 the Crimea Court of Appeal and the Higher Specialised Civil and Criminal Court, respectively, upheld th e judgment of the Zaliznychnyy Court of 23 June 2011.

2 . The applicant ’ s health and medical care provided to him in detention

The applicant is certified as Category 1 disabled (the m ost severe level of disability) on account of paraplegia of his lower limbs as a result of a gunshot wound to his spinal cord suffered in 1996. Being wheelchair-bound, he developed a skin condition known as pressure sores (decubitus ulcers).

From 25 June to 21 July 2010 the applicant underwent inpatient medical treatment in the Saky Territorial Medical Unit (“the Saky Hospital”) in respect of the aggravated chronic pyelonephritis . On 6 July 2010 he also had reconstructive surgery for his pressure sore in that hospital. On 20 July 2010 the stitches were removed, and on 21 July 2010 the applicant was discharged from the hospital.

On an unspecified date the Chief of the Surgery Department of the Saky Hospital issued a written note at the request of the applicant ’ s lawyer about the circumstances of the applicant ’ s discharge. He stated that on 20 July 2010 the police had insisted that the applicant be discharged without delay. One officer had allegedly said: “You understand very well why we are talking with you. He is a bandit. Just discharge him.” Accordingly, the applicant was discharged “to be further supervised by a surgeon and an urologist at the place of [his] residence”, despite the fact that his condition had not yet been fully stable after the surgery, the wound had not healed and the replanted skin flap had not been properly “trained”. He could sit only for 15-20 minutes per day, and substantial efforts had to be undertaken for prevention of pressure sores and for healing of the surgery wound.

The applicant was taken to the Simferopol Pre-Trial Detention Centre (SIZO). He was held there during the entire period of his pre-trial detention. According to him, he was held in a cell measuring about 11 sq.m . and shared by three inmates, with no space for any movement in a wheelchair.

On 17 August 2010 the applicant complained to his lawyer about the deterioration of his health. He submitted that he had constant fever and nausea, and that he had fainted several times.

On 18 August 2010 the applicant ’ s lawyer requested the SIZO governor to allow the applicant ’ s examination by one of the doctors who had been treating him before his detention.

On 26 January 2011, the day following the applicant ’ s re-arrest (he had been at liberty since 29 November 2010 – see above), he was placed in the medical unit of the Simferopol SIZO.

On 12 April 2011 he had his chest X-rayed. He was diagnosed with aggravated chronic bronchitis, but refused the recommended treatment.

On 18 April 2011 the applicant was examined by a neurosurgeon of the Saky Hospital, who reported that he had a black burn wound on three toes on his left foot and a burn blister on his right foot, and recommended treatment. The applicant was also diagnosed with aggravation of the pressure sores on his buttocks, which had progressed to a purulonecrotic stage, with formation of fistulas. The doctor recommended that the applicant lie on his stomach, be turned every two hours, and , on a daily basis , take shower s while remaining in horizontal position. Sitting was prohibited altogether . Lastly, the doctor held that the applicant required urgent inpatient treatment for his pressure sores in a specialised hospital environment.

On 19 April 2011 the applicant was examined by a combustiologist (a doctor specialising in treatment of burns) of the Simferopol City Hospital, who diagnosed him with boiling-water burns of both feet of second and third degree (on a four-degree scale). The specialist concluded that the applicant did not require hospitalisation, and that his burns, considered superficial, would heal by themselves within two to three weeks. An ointment was prescribed to be applied daily. The applicant refused that treatment.

On 4 May 2011 the applicant ’ s lawyer requested the State Department for Enforcement of Sentences (further referred to as “the Prison Department”, also in charge of pre-trial detention facilities) to carry out an examination of the applicant by a panel of medical specialists with a view to defining his health condition, medical needs and the possibility to meet those needs in the SIZO.

On 5 May 2011 the applicant was examined by a neurosurgeon of Semashko Republic Clinical Hospital (“the Semashko Hospital”) , who generally confirmed the diagnoses given on 18 and 19 April, but considered that the applicant did not require hospitalisation . Some treatment was also prescribed (no details are available in the case file as it stands).

On the same day the applicant was also examined by a nephrologist from the Semashko Hospital who diagnosed him with urethral atony (urinary incontinence) and chronic pyelonephritis. The doctor concluded that the applicant did not require hospitalisation and made some prescriptions as to his outpatient treatment. The applicant refused to follow those recommendations, and a report was drawn up in this respect .

On 6 May 2011 the applicant was examined by a surgeon of the Semashko Hospital who diagnosed that the second- and third-degree burns failed to heal and who gave some recommendations. No hospitalisation was deemed necessary.

On the same date the applicant was also examined by an ophthalmologist of the Semashko Hospital who diagnosed him with acute conjunctivitis of both eyes and prescribed treatment.

Following his complaints of pain in the chest area, on 16 May 2011 the applicant underwent X-raying, which showed that he had a broken rib.

On 19 May 2011 the applicant was examined by a trauma specialist from Simferopol City Hospital no. 6 (“Hospital no. 6”). The doctor produced a report that the applicant had been behaving aggressively and had not been able to explain in what circumstances he had broken his rib. Some unspecified recommendations were given as to the applicant ’ s treatment.

On 3 June 2011 the Prison Department wrote to the applicant ’ s lawyer that there were no reasons to have the applicant examined by a panel of medical specialists, given that he had already been examined on many occasions by various doctors.

On 14 July 2011 the applicant was examined by a surgeon of Hospital no. 6 who diagnosed paraproctitis ( purulent inflammation of the cellular tissues surrounding the rectum ) and recommended surgical drain of abscess in a hospital environment. The doctor made a written statement that the surgery was “contraindicated in the antiseptic conditions of the SIZO”.

On 15 July 2011 the applicant was taken to Hospital no. 6 . The Chief of the Surgery Department examined him and concluded that no hospitalisation was required. As a result, the applicant was returned to the SIZO on the same day.

On 20 July 2011 the Crimea Court of Appeal wrote to the applicant ’ s lawyer, in reply to her request for that the applica nt be permitted to be examined by his doctor, that such a matter was within the competence of the SIZO administration.

On 23 July 2011 an ambulance was called for the applicant. No further details are available in the case file as it stands.

On 10 August 2011 the Prison Department sent a letter of the following contents to the “ Arqadaş ” chairman. During his detention in the SIZO the applicant had been examined by a surgeon seven times, by a neurosurgeon – twice, by a gastroenterologist – twice, by a trauma specialist – once, by a nephrologist – once, by an urologist – twice, by an ophthalmologist – once, by a therapist – once, and by a combustiologist – twice. The applicant had refused the treatment recommended by all those doctors, and forty-five reports had been drawn up in that respect.

On 31 October 2011 the Commissioner for Human Rights of the Parliament of Ukraine (Ombudsman) wrote to the applicant that the investigation in his case, which had been undertaken following his complaint to a member of Parliament, had been completed. The Ombudsman had not established any irregularities as regards the medical care provided to the applicant in detention. A representative of the Ombudsman had visited the applicant in the medical unit of the SIZO. His ward had four beds, sufficient light and ventilation, and there was a fridge and a TV-set. The conditions of the applicant ’ s detention were therefore considered adequate.

After his transfer to the Sofiyivska prison on 20 September 2011, from 14 October to 17 November 2011 and from 10 January to 1 February 2012 the applicant underwent inpatient treatment in the hospital of that prison in respect of the consequences of the spinal cord injury. During the second-mentioned period he was also treated for chronic prostatitis and urethritis .

B . Relevant international material

1. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) and in force since 3 May 2008

The Convention was signed by Ukraine on 24 September 2008 and ratified on 4 February 2010 . The relevant parts provide as follows :

Article 2 - Definitions

“For the purposes of the present Convention:

... ‘ Reasonable accommodation ’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...”

Article 14 - Liberty and security of the person

“2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”

In the Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows:

“50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependent situation and make him or her an easier target of abuse ...

53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ...

54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘ provision of reasonable accommodation ’ . This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.”

2. Council of Europe material

Th e Council of Europe ’ s Committee of Ministers Recommendation No. R (98) 7 concerning the e thical and o rganisational a spects of h ealth c are in p rison , adopted on 8 April 1998, reads as follows:

“ 5 0 . Prisoners with serious physical handicaps [...] should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ”

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) referred to the above recommendation in its Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 September 2009 [CPT/ Inf (20 11 ) 2 9] as follows :

“141. [...] The CPT refers to the Council of Europe ’ s Committee of Ministers Recommendation R (98) 7 on the Ethical and Organisational Aspects of Health Care in Prison, according to which structural alterations should be effected to assist wheelchair-bound and physically disabled prisoners on lines similar to those in the outside environment. Such prisoners should be guaranteed access to all basic facilities, including prisoner accommodation areas, shower and toilet facilities, canteen, exercise yards and medical unit. When required, they should benefit from assistance in their daily life. Efforts should also be made to provide them with an appropriate range of purposeful activities. [...] . ”

The relevant CPT Standards ( CPT/ Inf /E (2002) 1 - Rev. 2011) read as follows:

“34. ... Sanitary facilities should allow patients some privacy. Further, the needs of [ handicapped patients ] in this respect should be given due consideration; for example, lavatories of a design which do not allow the user to sit are not suitable for such patients. Similarly, basic hospital equipment enabling staff to provide adequate care (including personal hygiene) to bedridden patients must be made available; the absence of such equipment can lead to wretched conditions. ”

Recommendation CM/Rec (2012) 5 of t he Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular:

“19. Prison staff shall be sensitive to the special needs of individuals, such as juveniles, women, minorities, foreign nationals, elderly and disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs.

20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.

21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules.

22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.”

COMPLAINTS

The applicant complains under Article 3 of the Convention about the physical conditions of his detention in the Simferopol SIZO, which is not adapted for wheelchair-bound detainees. He submits that he was dependant on other inmates in order to accommodate his basic needs (such as using toilet, taking shower or getting meals), was deprived of daily walks, and had fewer meetings with his lawyer than wished, as for every such meeting his cell-mates had to carry him. He further notes that, in the absence of adequate facilities and attendance to his special needs, he had several accidents in the SIZO, such as burning his feet with hot water and breaking a rib.

The applicant also complains under Article 3 that he was not provided with adequate medical care in the SIZO. He alleges, in particular, that the seriousness of his health condition was underestimated. He also refers to the constant deterioration of his health and the denial of his access to the doctor of his choice who had been treating him prior to his detention.

He next complains under Article 5 § 1 that his remanding in custody on 25 January 2011 was an arbitrary, unnecessary and cruel measure. Lastly, the applicant complains under Article 5 § 3 that his continued detention was not based on relevant and sufficient reasons and that the domestic authorities never examined any alternative, less intrusive preventive measure, such as a commitment not to leave the town or bail.

QUESTIONS TO THE PARTIES

1. Were the physical conditions of the applicant ’ s detention in the Simferopol SIZO compatible with the requirements of Article 3 of the Convention? In particular, was that detention facility adapted to the needs of wheelchair-bound inmates?

2 . W as the applicant provided with adequate medical treatment while in detention, in compliance with Article 3 of the Convention?

3 . Was the applicant ’ s remand in custody on 25 January 2011 and his continued pre-trial detention thereafter compatible with Article 5 §§ 1 and 3 of the Convention?