CASE OF BORODAY AND OTHERS v. UKRAINE (European Court of Human Rights) 44274/13 and 2 others

The applicants alleged that they did not receive adequate medical care in detention. Some applicants also raised other complaints under the provisions of the Convention.


FIFTH SECTION
CASE OF BORODAY AND OTHERS v. UKRAINE
(Applications nos. 44274/13 and 2 others – see appended list)
JUDGMENT
STRASBOURG
13 January 2022

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

In the case of Boroday and Others v. Ukraine,

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

Lətif Hüseynov, President,
Lado Chanturia,
Arnfinn Bårdsen, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 9 December 2021

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

PROCEDURE

1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. Notice of the applications was given to the Ukrainian Government (“the Government”).

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants alleged that they did not receive adequate medical care in detention. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

6. The applicants complained principally that they were not afforded adequate medical treatment in detention. They relied on Article 3 of the Convention, which reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

7. The Court notes that the applicants suffered from serious medical conditions, as indicated in the appended table, which affected their everyday functioning. Therefore, they could have experienced considerable anxiety as to whether the medical care provided to them was adequate.

8. The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine (see Blokhin v. Russia [GC], no. 47152/06, § 137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate (see, for example, Gorbulya v. Russia, no. 31535/09, § 62, 6 March 2014, with further references, and Pokhlebin v. Ukraine, no. 35581/06, § 62, 20 May 2010, with further references) and that ‒ where necessitated by the nature of a medical condition ‒ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see, inter alia, Ukhan v. Ukraine, no. 30628/02, § 74, 18 December 2008, with further references, and Kolesnikovich v. Russia, no. 44694/13, § 70, 22 March 2016, with further references). The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see, for instance, Sadretdinov v. Russia, no. 17564/06, § 67, 24 May 2016, with further references, and Konovalchuk v. Ukraine, no. 31928/15, § 52, 13 October 2016, with further references)

9. Having examined all the material submitted to it, the Court has identified the shortcomings in the applicants’ medical treatment, which are listed in the appended table. The Court has already found a violation in respect of issues similar to those in the present case (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-05, ECHR 2005 II, Melnik v. Ukraine, no. 72286/01, §§ 104-06, 28 March 2006, and Logvinenko v. Ukraine, no. 13448/07, §§ 68-78, 14 October 2010). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicants did not receive comprehensive and adequate medical care whilst in detention.

10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. In application no. 36191/15, the applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Kharchenko v. Ukraine, no. 40107/02, §§ 70-72, 10 February 2011.

IV. REMAINING COMPLAINTS

12. In application no. 44274/13, the applicant also raised other complaints under various Articles of the Convention.

13. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

15. Regard being had to the documents in its possession and to its case‑law (see, in particular, Logvinenko, cited above, §§ 89-95), the Court considers it reasonable to award the sums indicated in the appended table. It also rejects any additional claims for just satisfaction raised by the applicant in application no. 44274/13.

16. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints concerning the failure of the authorities to provide the applicants with adequate medical care in detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of application no. 44274/13 inadmissible;

3. Holds that these complaints disclose a breach of Article 3 of the Convention on account of the inadequate medical care in detention;

4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

5. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

6. Dismisses the remainder of the applicant’s claims for just satisfaction in application no. 44274/13.

Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                      Lətif Hüseynov
Acting Deputy Registrar                       President

___________

APPENDIX
List of applications raising complaints under Article 3 of the Convention
(inadequate medical treatment in detention)

No. Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location Principal medical condition Shortcomings in medical treatment Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage per applicant

(in euros)[i]

Amount awarded for costs and expenses per application

(in euros)[ii]

1. 44274/13

24/06/2013

Borys Mykhaylovych BORODAY

1948

Boychenko Yegor Leonidovych,

Strasbourg

heart condition lacking/delayed drug therapy, lack of/delay in consultation by a specialist; lack of/delayed appropriate medica examinations/testing

14/05/2010 to 20/02/2017

6 years and 9 months and 7 days

7,500
2. 18862/15

01/04/2015

Ivan Bogdanovych TSEBRIY

1989

 

 

physical injury lack of/delay in medical examination

04/10/2014 to 26/12/2014

2 months and 23 days

5,000
3. 36191/15

15/07/2015

Yuriy Grygorovych SIRYY

1969

Kheylyk Volodymyr Volodymyrovych

Dnipro

ankylosing spondylitis (permanent acute pain in back) lack of/delay in consultation by a specialist

02/07/2013 to 25/09/2015

2 years and 2 months and 24 days

Art. 5 (1) – unlawful detention –
28/10/2014 to 18/12/2014 – detention not covered by any judicial order
9,750 250

[i] Plus any tax that may be chargeable to the applicants.

[ii] Plus any tax that may be chargeable to the applicants.

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