FIFTH SECTION

CASE OF NESHCHERET v. UKRAINE

(Application no. 41395/19)

JUDGMENT

STRASBOURG

22 June 2023

This judgment is final but it may be subject to editorial revision.

In the case of Neshcheret v. Ukraine,

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

Stéphanie Mourou-Vikström , President , Mattias Guyomar, Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 41395/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 July 2019 by two Ukrainian nationals, Ms Anna Volodymyrivna Neshcheret (“the first applicant”) and Mr Ruslan Dmytrovych Neshcheret (“the second applicant”) (together “the applicants”), who were born in 1994 and 2018 respectively and live in Vyshneve and who were represented, most recently, by Mr M. Tarakhkalo, Mr Y. Chekarov and Ms A. Kozmenko, lawyers practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their then acting Agent, Ms O. Davydchuk, of the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 1 June 2023,

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

SUBJECT MATTER OF THE CASE

1. The case concerns the conditions of detention of a mother and her newborn child at the Kyiv pre-trial detention centre (“the SIZO”), as well as the medical care provided to the baby in that institution. It raises issues under Articles 3 and 13 of the Convention.

2. Following her conviction on 19 October 2017 by the Obolonskyi District Court of Kyiv, the first applicant served her sentence at the Kyiv SIZO in cell no. 346 (“the cell”), which was designed to accommodate mothers with children.

3. On 11 January 2018 she gave birth to the second applicant.

4 . The applicants and the Government provided different accounts of the physical conditions of detention in the cell. Each party provided photos supporting their description of the cell. The first applicant submitted to the Court a written statement describing her version of the facts, which had been signed by her cellmate, Ms P. (see Appendix I).

5 . According to a medical certificate of 15 March 2018 issued by a SIZO doctor, on her arrival on 8 November 2016 the first applicant had undergone an X-ray, which revealed no disorders of her respiratory organs.

6. On 28 February 2018 the first applicant underwent an X-ray, which revealed pathological changes in her lungs.

7. On 13 March 2018 she was diagnosed with infiltrative tuberculosis and advised that she should be hospitalised for treatment. On 23 March 2018 the first applicant was taken to the Interregional Specialised Tuberculosis Hospital at the Zbarazh Prison no. 63, where she successfully underwent intensive treatment for tuberculosis. On 27 October 2018 the first applicant was returned to the SIZO.

8. On 16 March 2018 the second applicant was taken to Children’s Clinical Hospital no. 2 (for more details about the second applicant’s medical treatment, see Appendix II).

9. On 19 March 2018 he was taken to the Berizka orphanage in Kyiv (“the orphanage”).

10 . On 24 April 2018 the second applicant was admitted to the Kyiv City Clinical Children’s Tuberculosis Hospital (“the tuberculosis hospital”) to undergo a programme of anti-tuberculosis treatment for between nine and twelve months.

11. On 18 July 2018 the second applicant was discharged from the tuberculosis hospital back to the orphanage.

12 . On 14 November 2018 the second applicant was discharged from the orphanage back to the SIZO, where he was reunited with the first applicant.

13 . On 19 November 2018 the second applicant was taken to Kyiv Children’s Hospital no. 8, suffering from a temperature of 40.1 o C, a cough and rhinitis. He stayed at that hospital until 3 December 2018.

14 . On 21 December 2018 and 3 January 2019, the head of a non ‑ governmental organisation (NGO) took the second applicant in his private car to the Institute of Traumatology and Orthopaedic Rehabilitation (“the Institute”) for a consultation with an orthopaedic surgeon.

15 . On 22 February 2019 the Shevchenkivskyi District Court of Kyiv allowed an application by the first applicant for release from serving her sentence until the second applicant reached the age of three. It found, among other things, that the living conditions in the SIZO, as well as the nutrition and medical care provided to the second applicant, who was suffering from a number of diseases requiring medical supervision and assistance, could not be considered adequate and that the second applicant required special treatment and special conditions which it was impossible to arrange for a mother and her child at detention facilities.

16. On 1 March 2019 the first applicant was released and the applicants left the SIZO.

THE COURT’S ASSESSMENT

17. The second applicant complained that the physical conditions in the Kyiv SIZO had not been adequate. He also complained that the SIZO authorities had failed to provide medical treatment to him as recommended by the doctors.

18. The Government asked the Court to reject the present application as an abuse of the right of individual application because the first applicant had misled the Court in stating that the SIZO administration had failed to apply for a childbirth allowance on her behalf. The Government also contested the second applicant’s description of the conditions of his detention and further submitted that the first applicant had taken the second applicant’s medical records when leaving the SIZO and that they were not in a position to provide detailed comments on the matter.

19. The Court dismisses the Government’s objection of abuse of the right of application as being without merit, since it does not relate to the second applicant’s complaint – that is, to his allegations of inadequate conditions of detention and a failure to provide medical care to him as recommended by doctors. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds. It must therefore be declared admissible.

20. The relevant principles in relation to conditions of detention for mothers and their children and the obligation to provide medical treatment for detainees can be found in Korneykova and Korneykov v. Ukraine (no. 56660/12, §§ 128-33 and 149-50, 24 March 2016). The relevant principles for the assessment of evidence and the establishment of facts in relation to complaints about conditions of detention can be found in Sukachov v. Ukraine (no. 14057/17, § 83, 30 January 2020).

21. The Court notes that the Government and the second applicant provided different accounts of the physical conditions in the cell (see Appendix I). Both parties submitted photographs of the cell, each claiming that they represented the state of the cell when the applicants had been held there.

22. The Court notes that the Government did not argue that the second applicant’s photographs were not authentic. The Court therefore finds those photographs to be credible. They show an electric heater standing on a worn floor and a cooking stove standing on a stool, large bars on the windows, dirty ventilation grids and mould on the bathroom ceiling. The appearance of the heater suggests that the heating was not sufficient to meet the needs of the infants.

23. In relation to nutrition, the Court reiterates that the authorities are under an obligation to feed detainees adequately (see Kadiķis v. Latvia (no. 2) , no. 62393/00, § 55, 4 May 2006). The Court observes that the Government did not comment on the first applicant’s statement that the SIZO staff had bought baby food at their own expense in order to feed the second applicant.

24. The Court refers to the finding of the domestic court, which established that the living conditions and nutrition at the SIZO could not be deemed to be adequate for the second applicant (see paragraph 15 above). The Court finds no grounds to reach a different conclusion from that of the domestic court.

25. Taking all the above into consideration together, the Court concludes that the physical conditions of detention in the cell in relation to the second applicant were inadequate.

26. The Court notes that the second applicant was suffering from a number of diseases and required constant medical supervision (see Appendix II).

27. The Court further notes that the Government did not explain what kind of and how many medical specialists had been employed at the SIZO, whether a paediatrician had been invited to examine the children or whether any medical examination was provided for by law for children kept at a SIZO.

28. It appears that no adequate medical examination or treatment was offered to the second applicant at the SIZO (see Appendix II), nor could the SIZO ensure his transfer to a hospital for any treatment not connected with an imminent risk to his health (see paragraph 14 above). The domestic court found that the second applicant had required special medical treatment and special conditions which it was impossible to arrange at the SIZO (see paragraph 15 above).

29. In these circumstances that Court cannot but find that the second applicant was not provided with adequate medical assistance at the SIZO, which amounted to his inhuman and degrading treatment (see Korneykova and Korneykov , cited above, §§ 157-158).

30. There has accordingly been a violation of Article 3 of the Convention in relation to the physical conditions of detention in the cell of the second applicant and the failure to provide adequate medical care to him during his stay at the SIZO.

31. The second applicant also raised another complaint which is covered by the well ‑ established case-law of the Court, namely that he had no effective remedies in respect of his complaints under Article 3 of the Convention. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible.

32. Having examined all the material before it, the Court concludes that it discloses a violation of Article 13 of the Convention, read in conjunction with Article 3 of the Convention, in the light of its findings in the pilot judgment in Sukachov (cited above, §§ 123 and 125).

33. The first applicant complained under Articles 3 and 13 of the Convention about the allegedly inadequate conditions of her detention.

34. The Government disagreed.

35. The Court notes that the first applicant was detained with only one cellmate in a cell designed for four persons and had access to basic amenities. She was treated for tuberculosis soon after it was diagnosed and did not submit that this treatment had not been effective. On the basis of the material provided, the Court is unable to conclude that the first applicant’s conditions of detention amounted to a violation of Article 3 of the Convention.

36. Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4 of the Convention.

37. As the first applicant’s complaint under Article 3 is inadmissible, she has no arguable claim for the purposes of Article 13 of the Convention. This complaint is therefore incompatible ratione materiae within the meaning of Article 35 § 3 (a) of the Convention and must be rejected under Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

38. The second applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage. The first applicant claimed EUR 10,800 for legal costs incurred in the representation before the national authorities and the Court, which corresponded to twenty-three hours of work aimed at exhaustion of domestic remedies, twenty-one hours of drafting the application to the Court and twenty-eight hours of drafting the reply to the Government’s observations.

39. The Government contested the above sum, arguing that it was unsubstantiated and excessive.

40. The Court awards the second applicant EUR 2,500 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. Given that the lawyer defended the interests of the first and the second applicant, a minor, the Court accepts that the claim for costs of expenses was meant to be filed on behalf the second applicant as well. Having regard to the documents in its possession, the Court awards EUR 2,000, covering costs under all heads, to be paid directly into the bank account of Mr M. Tarakhkalo, plus any tax that may be chargeable to the first applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the second applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses, to be paid directly into the bank account indicated by Mr M. Tarakhkalo;

(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;

Done in English, and notified in writing on 22 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President

Appendix I

Physical conditions of the cell

Applicants’ account

Government’s account

The furniture in the cell was shabby and broken.

The floor was covered with a pile of wires and dirty adapters, an electric stove was kept on a stool and the heater had been put on the floor where the children had direct access to it.

The cell door had not been equipped with a special window for serving food and it creaked loudly each time it was opened, disturbing any children who were sleeping.

The walls and ceiling in the bathroom were covered with mould which had not been removed but painted over, and the smell of fresh paint spread to the cell.

The windows were draughty and the temperature in the cell was insufficient.

The daily walks in a small yard were not sufficient, as the second applicant required specialised activities in view of his developmental delay.

The applicants provided photographs showing a room with a worn floor covered with wires coming from an electric stove and an electric heater, worn and broken furniture and electrical equipment, large bars on the windows allowing little daylight into the room, dirty ventilation grids, and mould on the bathroom ceiling and walls.

The cell had been designed for four persons, measured 26,7 sq.m of living space and was well equipped.

Major repair works had been carried out in June 2015.

The cell had been cleared of infestations and rats during the previous year and the walls were treated against mould when necessary.

The cell had sufficient natural and electric light and the cell temperature was satisfactory, falling no lower than 18 o C. The applicants were entitled to two hours’ walk daily in a courtyard equipped with benches and sports equipment.

The Government produced photographs showing a light clean room with furniture and a bathroom. The photos did not show the bathroom ceiling.

The food was not sufficient.

The first applicant did not breastfeed the second applicant and the SIZO did not provide baby food.

The SIZO employees bought baby powder at their own expense and gave it to her.

Between 14 November and 30 December 2018, the menu did not contain eggs, butter, milk or cheese. Meat was served as bones covered with small pieces of meat.

From 30 December 2018 until 1 March 2019, baby food was not provided at all. Breakfasts and dinners consisted of porridge with fat and lunches consisted of porridge with water.

The applicants complained that they had received no parcels from outside the SIZO and had no money to buy extra food at the SIZO shop.

The applicants were fed in accordance with the legislation in force, three times a day.

Appendix II

Medical treatment received by the second applicant at

the SIZO

the orphanage

the Kyiv City Clinical Children’s Tuberculosis Hospital

Kyiv Children’s Hospital no. 8

the Institute of Traumatology and Orthopaedic Rehabilitation

No information available

In March 2018 the second applicant was diagnosed with hepatitis C, a slight statokinetic developmental delay, and congenital bilateral club feet. Plaster casts were applied to his legs to treat his club feet.

On 19 April 2018 the second applicant was examined by a tuberculosis specialist.

Upon his return from the hospital, between July and August 2018, the second applicant was examined by a neurosurgeon, a neurologist, an ophthalmologist, an orthopaedic surgeon, an ear, nose and throat specialist and a paediatrician, who diagnosed, among other things, hydrocephalus and recommended an operation to treat his club feet, consultation with a genetic specialist, a number of laboratory tests and the application of plaster casts twice with an interval of fourteen days as a preparatory measure for the operation.

On 14 November 2018 he was discharged from the orphanage. A senior doctor issued a medical certificate recommending that the second applicant’s health be supervised by a paediatrician, a tuberculosis specialist and an orthopaedic surgeon, and that he have laboratory tests, receive preventive care for respiratory disease, be vaccinated as recommended by a tuberculosis specialist and keep receiving anti-tuberculosis therapy and a special diet. The document stated that the second applicant was not suffering from any infectious diseases and had not been in contact with anyone suffering from an infectious disease during the previous twenty-one days.

On 24 April 2018 the second applicant was hospitalised to undergo anti-tuberculosis treatment. At the hospital, he was examined by a neuropathologist and an orthopaedic surgeon. The former recommended that he undergo physical therapy, massage and neurosonography examinations every six months, and the latter applied new plaster casts to his legs to treat his club feet.

When discharged from the hospital on 18 July 2018, he was prescribed anti-tuberculosis therapy. It was recommended that he be kept under the supervision of the children’s tuberculosis specialist, a neuropathologist and an orthopaedic surgeon. It was also recommended that he undergo a neurosonography examination at the age of six months and a computer tomography scan of his intrathoracic organs within one month.

On 19 November 2018 the second applicant was transferred to the hospital and diagnosed with an acute respiratory viral infection together with hyperthermia syndrome and found to have a temperature of 40.1 o C. The medical certificate stated that the second applicant had arrived on the second day of his illness.

On 21 December 2018 and on 3 January 2019 the head of an NGO drove the second applicant to the Institute to have his plaster casts changed.