FIFTH SECTION

Application no. 5212/13 Eduard Volodymyrovych SAVINOV against Ukraine lodged on 21 January 2013

STATEMENT OF FACTS

The applicant, Mr Eduard Volodymyrovych Savinov , is a Ukrainian national, who was born in 1970. The applicant is currently serving his sentence at Golaprystanska prison. He is represented before the Court by Ms O. Y. Sapozhnikova , a lawyer practising in Kyiv.

A. The circumstances of the case

The facts of the case, as submitted by the applicant and partly commented on by the Government of Ukraine, may be summarised as follows.

In 1995 the applicant tested HIV positive and, for that reason, was registered with the Illichivsk municipal clinic. Prior to the events described below, the applicant was also diagnosed as suffering from tuberculosis of the lymph nodes and underwent medical treatment at the same clinic.

On an unspecified date in 2006 the applicant was arrested in connection with criminal proceedings instituted against him.

On 30 December 2006 the applicant was placed in detention at Illichivsk pre-trial detention facility. According to the applicant, although he informed the staff of the detention facility about his health problems, including the HIV and tuberculosis diagnosis, no medical treatment was given to him.

On 11 June 2007 the Illichivsk Court convicted the applicant of premeditated infliction of a serious injury and sentenced him to nine years ’ imprisonment.

According to the applicant, on 26 December 2008 he was transferred to the Golaprystanska prison. Upon his arrival, the applicant was examined by prison doctors. The applicant did not receive any medical treatment before June 2012, when he was taken to the prison medical unit as he had fever. While at the medical unit, the applicant was examined by prison doctors who noted that he had HIV infection at the fourth clinical stage and serious form of tuberculosis. Between June and December 2012 the applicant was receiving some medical treatment at the medical unit, though his health condition further declined. Eventually, the doctors told him that they did not have the necessary medication to treat the applicant ’ s diseases and that he should have been taken to a specialised medical institution. During 2012 the applicant was taken to prisons in Odesa and Dariyivka in particular to receive antiretroviral therapy.

According to the Government, the applicant was diagnosed with HIV on 26 October 2012. Since then, he has been under constant supervision of the medical staff of the Golaprystanska prison, which is a specialised medical facility (hospital) for treatment of prisoners suffering from tuberculosis.

The Government submitted documents from the applicant ’ s medical file, according to which he was transferred to the Golaprystanska prison from the Dariyivka prison on 12 October 2012 as he had tuberculosis of the lymph nodes, leucopoenia, chronic hepatitis and chronic pancreatitis. He was examined by prison doctors who prescribed him specialised anti ‑ tuberculosis treatment. On 26 October 2012 the applicant was examined by an infection diseases specialist who diagnosed him with HIV at the fourth clinical stage (44 CD cells). The applicant further passed a number of blood and urine tests and underwent other medical examinations. On 17 December 2012 the infection diseases specialist prescribed the applicant antiretroviral therapy; the prescription was modified on 10 January 2013. The treatment was not administered before January 2013 for lack of medication. On 17 December 2012 the Golaprystanska prison governor requested a specialised public medical institution for AIDS prevention and treatment based in Odesa to provide the necessary 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 to inmates. It was also stated that once the applicant was released, he would be provided with adequate medical assistance.

Meanwhile, on 28 December 2012 the medication for the applicant ’ s antiretroviral therapy was provided by a non-governmental organisation Sun Circle ( Сонячне Коло ) in the amount enabling the treatment to last until February 2013. Subsequently, the applicant has continued receiving the necessary medication, although he contests their effectiveness.

On 4 and 25 February 2013 the Golaprystanska prison governor lodged with the Gola Prystan Court two requests under Article 84 of the Criminal Code for the applicant ’ s release, stating that the applicant suffered from an incurable disease (AIDS) 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.

On 11 February and 11 March 2013, respectively, the court rejected both requests principally on the grounds that the applicant had been repeatedly convicted for serious crimes (the most recent having been the assault of his mother, as a result of which she had died) and while imprisoned he had been disciplined for violating prison regulations on twelve occasions, which demonstrated that he had persistent anti-social behaviour and did not wish to improve. According to the court, the applicant remained dangerous to the society. In its decision of 11 February 2013, the court also noted that the applicant ’ s relatives or close ones had not expressed the wish to take care of him at liberty.

On 10 April 2013 the Golaprystanska prison governor lodged with the same court a new request for the applicant ’ s release. No decision has been given on that request so far.

Meanwhile, the applicant requested the Court to indicate to the Government, under Rule 39 of the Rules of Court, that he had to be immediately taken to a specialised medical institution at which he could receive adequate medical treatment. The applicant referred to the specialised public medical institution for AIDS prevention and treatment in Odesa , as an example of such an institution. On 18 March 2013 the Court decided to indicate to the Government, under Rule 39, that the Government had to secure “immediately, by appropriate means, the appropriate medical treatment of the applicant, relevant to his HIV condition”.

On 25 March 2013 the Government submitted medical information, according to which the applicant ’ s health condition was of medium severity. His HIV and tuberculosis diagnoses were confirmed and it was noted that the applicant also suffered from hyperthermia, chronic hepatitis, chronic pancreatitis, post- trombophlembic syndrome, anaemia, serious immunosuppression, loss of weight, and diarrhea . The applicant remained under constant supervision of a phthisiologist and an infection diseases specialist at the Golaprystanska prison hospital and was being provided with the specialised therapy for his HIV infection and tuberculosis and also with symptomatic treatment and vitamins.

The applicant claims that the Government have not complied with the Court ’ s decision under Rule 39 and that his state of health is very poor – he has constant dizziness, diarrhea , and often headaches – and continues deteriorating. Most of the time the applicant stays in bed having no force to get up. According to the applicant, he has been provided with medication only in respect of tuberculosis and HIV infection, while no treatment was given to him as regards his other diseases.

The applicant states that he should be released from prison so that he can obtain adequate medical assistance at a specialised public medical institution for AIDS prevention and treatment.

B. Relevant domestic law and practice

Article 84 of the Criminal Code provides, inter alia , that convicts, who after the commission of the crime or after the delivery of the verdict have contracted serious diseases preventing them from serving their sentences, may be released from the punishment. When dealing with such matters the court shall take into account the gravity of the crime, the nature of the disease, the personality of the convict and other circumstances of the case. According the guidelines issued by the Plenary Supreme Court concerning the procedure for release of convicts suffering from serious diseases from serving their sentences (Resolution no. 2 of 28 September 1973), the fact that a convict has a serious disease will not, of itself, lead to his or her release from the punishment. The convict concerned may be released if his or her further detention endangers his or her life or may lead to serious health decline or to “other grave circumstances”. The courts dealing with such matters should not limit the examination to studying the report of a medical commission, but should also take into account the gravity of the crime and the convict ’ s behaviour, work attitude and degree of correctional rehabilitation. The courts should check whether the convict followed the medical treatment prescribed to him or her and examine other circumstances.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he has been subjected to torture as the authorities have failed to provide him with adequate medical assistance since 30 December 2006. According to the applicant, his further detention may result in his death in violation of Article 2 of the Convention.

The applicant also complains under Article 13 of the Convention that there is no effective domestic remedy for his complaints under Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints of lack of medical assistance during his detention from December 2006 to January 2013?

2. Did the applicant have at his disposal an effective domestic remedy for his above complaints under Article 3, as required by Article 13 of the Convention?