FIFTH SECTION

Application no. 47646/10 Oleksandr Volodymyrovych YEKUSHENKO against Ukraine lodged on 6 August 2010

STATEMENT OF FACTS

The applicant, Mr Oleksandr Volodymyrovych Yekushenko, is a Ukrainian national, who was born in 1969 and lives in the city of Yuzhnoukrayinsk , Ukraine. He is represented be fore the Court by Mr V.G. Belik, a lawyer practising in Mykolayiv, and Mrs Svetlana Yekushenko, the applicant ’ s mother.

The circumstances of the case

Following request of the judge-rapporteur of 31 December 2010 under Rule 54 § 2 (a) of the Rules of Court, the Government submitted information about the applicant ’ s health condition.

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

1. Criminal proceedings against the applicant

On 24 November 2008 and 18 January 2009 two sets of criminal proceedings were instituted on forgery and large scale bank fraud.

According to the applicant, at 6 a.m. on 27 January 2009 he was arrested at his home upon suspicion of being involved in the above crimes. The police officers conducted a search in his apartment and took him to a police station.

At around 10 p.m. of the same day a police officer issued an act on the applicant ’ s arrest ( « протокол затримання » ).

On 30 January 2009 the Tsentralnyy District Court of Mykolayiv (“ Tsentralnyy Court ”) decided that the applicant should be kept in pre-trial detention for two months as he could escape and hinder investigation if at large. The applicant appealed against this decision but he submitted no information whether any decision had been taken upon this appeal.

The applicant ’ s detention was further prolonged by the courts on 27 March, 25 May, 24 June and 27 July 2009. In particular, on 24 June 2009 the Mykolayiv Regional Court of Appeal noted that the applicant was accused of committing serious crimes and that it was impossible to terminate the investigation within the five months ’ period as further investigative steps were to be performed.

On 23 October 2009 the applicant ’ s case arrived to the Yuzhnoukrayinskiy Local Court (“ Yuzhnoukrayinskiy Court ”) for consideration on the merits.

On several occasions the applicant requested his release and referred, inter alia , to his state of health (see bel ow). On 25 February and 9 April 2010 the Yuzhnoukrayinskiy Court rejected his requests since “the decision on the applicant ’ s detention was taken during the pre-trial investigation and such decision was lawful” and that “there were no reasons to change the preventive measure”.

On 17 December 2010 and 13 January 2011 the Yuzhnoukrayinskiy Court again refused to release the applicant.

On 25 November 2010 the same court decided that the applicant was to be examined in Yuzhnoukrayinsk Local Hospital . On 17 January 2011 the applicant was released on an undertaking not to abscond.

On 28 April 2012 the Yuzhnoukrayinskiy Court sentenced the applicant to seven years ’ imprisonment for fraud and forgery.

On 16 August 2012 the Mykolayiv Regional Court of Appeal upheld this decision. It appears that the proceedings are still pending since the decision of 16 August 2012 was appealed against.

2. Medical assistance and conditions of detention

Following the decision on his pre-trial detention, the applicant was placed in the Mykolayiv Pre-Trial Detention Centre (“the SIZO”).

On 10 February 2009 the applicant was examined by the SIZO doctors and was diagnosed with a post-trauma condition of his right eye.

On 24 March 2009 the applicant was examined by doctors of Mykolayiv Regional Ophthalmology Hospital and diagnosed with uveitis, cataract and other diseases related to his right eye trauma in 2007. An eye operation was recommended.

On 30 April 2009 the applicant complained to the SIZO doctor about eye pain.

Between 12 and 21 May 2009 the applicant stayed in Mykolayiv Regional Ophthalmology Hospital .

On 11 June 2009 the applicant was examined by a doctor of Mykolayiv Regional Infection Hospital . He was diagnosed with hepatitis “C” and other diseases. He was advised to undergo various analyses and to consult a neuropathologist.

In June-July 2009 the applicant underwent various tests and the hepatitis diagnosis was not confirmed.

Between June and September 2009 the applicant was examined by various doctors and diagnosed with acute chronic gastroduodenitis, acute chronic pancreatitis, osteoarthritis of the hip joints, kyphoscoliosis and other diseases. For some of his conditions he was prescribed treatment.

In September 2009 the applicant underwent eye surgery.

On 19 April 2010 the applicant was examined by a general practitioner, a surgeon and an ophthalmologist from Bratska C entral District Hospital . He was diagnosed with acute chronic gastroduodenitis, acute chronic pancreatitis, degenerative disk disease and a cataract.

On 7 October 2010 the applicant was examined by doctors of Mykolayiv Regional Ophthalmology Hospital . A laser correction of his right eye cataract was recommended.

On 7 December 2010 the applicant was examined by an orthopaedist of Mykolayiv City Hospital . He was diagnosed with the Calve-Perthes disease and proximal femoral replacement on both hips was recommended.

On 13 December 2010 Bratska C entral District Hospital issued a certificate that the applicant could not be detained in the SIZO because of his health problems.

On 11 January 2011 the applicant was informed that the daily medical budget for one detainee was 3.5 Ukrainian hryvnias (around 35 cents), therefore, it was impossible to perform the hip surgery.

The applicant submitted that in the SIZO he had been detained in inadequate conditions. In particular, there was not enough lighting, no hot water and food was inadequate. The applicant stated that he had been given porridge with small stones and dirt and bread infested with bacillus mesentericus .

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention about conditions of his detention and that he was not provided with adequate medical assistance for his various health problems. In particular, the applicant submitted that he became nearly blind.

In his application form of 14 January 2011 the applicant complains under Article 5 §§ 1 and 3 of the Convention about lack of lawful grounds for his arrest and pre-trial detention, about not being brought promptly before the judge and about length of pre-trial detention.

The applicant also invokes Articles 6, 10, 13, 14 and 18 of the Convention.

QUESTIONS TO THE PARTIES

1. D id the applicant ’ s conditions of detention amount to a breach of Article 3 of the Convention? In particular, was adequate medical treatment and assistance provided to the applicant in the SIZO and was such treatment compatible with the requirements of Article 3 of the Convention?

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

3 . Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention between 27 January 2009 and 17 January 2011 ?

4. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?