{"id":1453,"date":"2019-04-23T12:01:12","date_gmt":"2019-04-23T12:01:12","guid":{"rendered":"https:\/\/laweuro.com\/?p=1453"},"modified":"2019-04-24T15:05:27","modified_gmt":"2019-04-24T15:05:27","slug":"case-of-korol-and-others-v-ukraine","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=1453","title":{"rendered":"CASE OF KOROL AND OTHERS v. UKRAINE (European Court of Human Rights)"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF KOROL AND OTHERS v. UKRAINE
\n(Applications nos. 54503\/08 and 7 others –<\/em>
\nsee appended list)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n7 March 2019<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Korol and Others v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a\u00a0Committee composed of:<\/p>\n

S\u00edofra O\u2019Leary, President,
\nM\u0101rti\u0146\u0161 Mits,
\nLado Chanturia, judges,
\nand Liv Tigerstedt, Acting Deputy Section Registrar,<\/p>\n

Having deliberated in private on 14 February 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in applications against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on the various dates indicated in the appended table.<\/p>\n

2.\u00a0\u00a0Notice of the applications was given to the Ukrainian Government (\u201cthe Government\u201d).<\/p>\n

THE FACTS<\/strong><\/p>\n

3.\u00a0\u00a0The list of applicants and the relevant details of the applications are set out in the appended table.<\/p>\n

4.\u00a0\u00a0The applicants complained that they did not receive adequate medical care in detention. Some applicants also raised other complaints under the provisions of the Convention.<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0JOINDER OF THE APPLICATIONS<\/p>\n

5.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n

6.\u00a0\u00a0The applicants complained principally that they were not afforded adequate medical treatment in detention. They relied on Article\u00a03 of the Convention, which reads as follows:<\/p>\n

Article\u00a03<\/strong><\/p>\n

\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n

7.\u00a0\u00a0The Court notes that the applicants suffered from serious medical conditions, as indicated in the appended table, which affected their everyday functioning.<\/p>\n

8.\u00a0\u00a0The Court reiterates that the \u201cadequacy\u201d of medical assistance remains the most difficult element to determine (see Blokhin v.\u00a0Russia [GC], no.\u00a047152\/06, \u00a7\u00a0137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate (see\u00a0Pokhlebin v.\u00a0Ukraine, no.\u00a035581\/06, \u00a7 62, 20 May 2010, and Gorbulya v.\u00a0Russia, no.\u00a031535\/09, \u00a7 62, 6\u00a0March 2014, with further references) and that \u2012 where necessitated by the nature of a medical condition \u2012 supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee\u2019s health problems or preventing their aggravation (see, inter alia, Ukhan v.\u00a0Ukraine, no. 30628\/02, \u00a7 74, 18 December 2008, and\u00a0Kolesnikovich v.\u00a0Russia, no.\u00a044694\/13, \u00a7\u00a070, 22\u00a0March 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\u00a0Sadretdinov v.\u00a0Russia, no.\u00a017564\/06, \u00a7\u00a067, 24\u00a0May 2016, and Konovalchuk v. Ukraine, no. 31928\/15, \u00a7 52, 13 October 2016, with further references).<\/p>\n

9.\u00a0\u00a0Having examined all the material submitted to it, the Court has identified the shortcomings in the applicants\u2019 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\u00a0Nevmerzhitsky v.\u00a0Ukraine, no. 54825\/00, \u00a7\u00a7 103-05, ECHR 2005\u2011II (extracts); Melnik v.\u00a0Ukraine, no. 72286\/01, \u00a7\u00a7 104-06, 28 March 2006; Logvinenko v.\u00a0Ukraine, no. 13448\/07, \u00a7\u00a7\u00a068-78, 14\u00a0October 2010; Sergey Antonov v.\u00a0Ukraine, no. 40512\/13, \u00a7\u00a7 76-90, 22 October 2015; and Pivovarnik v.\u00a0Ukraine, no. 29070\/15, \u00a7\u00a7 37-46, 6 October 2016). 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.<\/p>\n

10.\u00a0\u00a0These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.<\/p>\n

III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n

11.\u00a0\u00a0The applicants in applications nos. 54503\/08 and 38721\/10 also complained that no effective domestic remedies regarding complaints about the quality of the medical care in detention were available to them. Their complaints fall to be examined under Article\u00a013 of the Convention, which reads as follows:<\/p>\n

Article\u00a013<\/strong><\/p>\n

\u201cEveryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority …\u201d<\/p>\n

12.\u00a0\u00a0The Court has on many occasions established that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention (see, among many other authorities, Melnik v.\u00a0Ukraine, cited above, \u00a7\u00a7 113-16; Koval v. Ukraine, no. 65550\/01, \u00a7\u00a7 93-98, 19 October 2006; and Savinov v. Ukraine, no. 5212\/13, \u00a7 58, 22 October 2015). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government constituted an effective remedy to prevent the alleged violations or stop them from continuing, or to provide the applicants with adequate and sufficient redress for their complaints under Article\u00a03 of the Convention.<\/p>\n

13.\u00a0\u00a0The Court sees no reason which would justify departure from its well-established case-law on the issue. It finds that the applicants in applications nos. 54503\/08 and 38721\/10 did not have at their disposal an effective domestic remedy for their complaints, in breach of Article 13 of the Convention.<\/p>\n

IV.\u00a0\u00a0OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/p>\n

14.\u00a0\u00a0The applicants in applications nos. 65987\/09, 29273\/10 and 38721\/10 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\u00a035\u00a0\u00a7\u00a03\u00a0(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 Melnik v. Ukraine (cited above), Kharchenko v. Ukraine, (no.\u00a040107\/02, 10\u00a0February 2011), Ignatov v. Ukraine, (no.\u00a040583\/15, 15 December 2016) and Vasiliy Ivashchenko v. Ukraine, no.\u00a0760\/03, \u00a7\u00a7 103-10, 26 July 2012).<\/p>\n

V.\u00a0\u00a0REMAINING COMPLAINTS<\/p>\n

15.\u00a0\u00a0In applications nos.\u00a025725\/09, 51967\/09, 65987\/09, 29273\/10 and 38721\/10 the applicants also raised other complaints under various Articles of the Convention.<\/p>\n

16.\u00a0\u00a0The Court has examined the complaints in these applications 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, these complaints either do not meet the admissibility criteria set out in Articles\u00a034 and\u00a035 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.<\/p>\n

It follows that this part of the above-mentioned applications must be rejected in accordance with Article\u00a035\u00a0\u00a7\u00a7\u00a01 and 4 of the Convention.<\/p>\n

VI.\u00a0\u00a0APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n

17.\u00a0\u00a0Article\u00a041 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

18.\u00a0\u00a0Regard being had to the documents in its possession and to its case\u2011law (see, in particular, Logvinenko v. Ukraine, cited above, \u00a7\u00a7 89-95, 14 October 2010), the Court considers it reasonable to award the sums indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicants and makes no award in respect of the applicant in application no. 157\/18 who did not request monetary compensation.<\/p>\n

19.\u00a0\u00a0The Court 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Decides to join the applications;<\/p>\n

2.\u00a0\u00a0Declares 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 applications nos.\u00a025725\/09, 51967\/09, 65987\/09, 29273\/10 and 38721\/10 inadmissible;<\/p>\n

3.\u00a0\u00a0Holds that these complaints disclose a breach of Article\u00a03 of the Convention on account of the inadequate medical care in detention;<\/p>\n

4.\u00a0\u00a0Holds that the complaints in applications nos. 54503\/08 and 38721\/10 disclose a breach of Article\u00a013 of the Convention on account of the lack of an effective domestic remedy regarding complaints about the quality of the medical care in detention;<\/p>\n

5.\u00a0\u00a0Holds that there has been a violation of the Convention in applications nos. 65987\/09, 29273\/10 and 38721\/10 as regards the other complaints raised under well-established case-law of the Court (see appended table);<\/p>\n

6.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay the other 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;<\/p>\n

(b)\u00a0\u00a0that 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.<\/p>\n

7.\u00a0\u00a0Dismisses the remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n

Done in English, and notified in writing on 7 March 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Liv Tigerstedt\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 S\u00edofra O\u2019Leary<\/p>\n

Acting Deputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

 <\/p>\n

APPENDIX<\/p>\n

List of applications raising complaints under Article 3 of the Convention<\/p>\n

(inadequate medical treatment in detention)<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong><\/p>\n

Date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

Date of birth<\/strong><\/p>\n

\u00a0<\/strong><\/td>\n

Representative\u2019s name and location<\/strong><\/td>\nPrincipal medical condition<\/strong><\/td>\nShortcomings in medical treatment<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

Dates<\/strong><\/td>\n

Other complaints under well-established case-law<\/strong><\/td>\nAmount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant<\/strong><\/p>\n

(in euros)[1]<\/a><\/strong><\/td>\n<\/tr>\n<\/thead>\n

1.<\/td>\n54503\/08<\/p>\n

07\/11\/2008<\/td>\n

Viktor Viktorovych Korol<\/strong><\/p>\n

04\/11\/1966<\/td>\n

Lyudmyla Oleksandrivna Sharaya<\/p>\n

Cherkasy<\/td>\n

Tuberculosis<\/td>\nlacking\/delayed drug therapy, Recurrence of disease (18\/08\/2009)<\/p>\n

 <\/p>\n

29\/01\/2008 to 18\/07\/2008<\/p>\n

5 months and 20 days<\/td>\n

Art. 13 – lack of any effective remedy in domestic law for the complaint of inadequate medical treatment in prison<\/td>\n7,500<\/td>\n<\/tr>\n
2.<\/td>\n25725\/09<\/p>\n

30\/03\/2009<\/td>\n

Eduard Lvovich Soloveychik<\/strong><\/p>\n

20\/10\/1981<\/td>\n

Olga Viktorovna Belyayeva<\/p>\n

Dnipro<\/td>\n

HIV\/AIDS, Tuberculosis, Hepatitis<\/td>\nDelay in provision of treatment of HIV, aggravation of HIV infection to stage III. Treatment not systematic and comprehensive resulted in recurrence of tuberculosis and transformation of hepatitis into a chronic form<\/p>\n

 <\/p>\n

21\/08\/2006 to 20\/03\/2009<\/p>\n

2 years and 7 months<\/td>\n

<\/td>\n7,500<\/td>\n<\/tr>\n
3.<\/td>\n51967\/09<\/p>\n

05\/07\/2009<\/td>\n

Andrey Vladimirovich Dubrov<\/strong><\/p>\n

15\/08\/1975<\/td>\n

Taras Oleksandrovych Kalmykov<\/p>\n

Kharkiv<\/td>\n

HIV\/AIDS<\/td>\nlacking\/delayed drug therapy, aggravation of HIV infection from stage III to stage IV<\/p>\n

 <\/p>\n

21\/05\/2012 to 01\/10\/2013<\/p>\n

1 year, 4 months and 11 days<\/td>\n

<\/td>\n7,500<\/td>\n<\/tr>\n
4.<\/td>\n65987\/09<\/p>\n

16\/11\/2009<\/td>\n

Oleksiy Ivanovych Kravchenko<\/strong><\/p>\n

20\/01\/1956<\/td>\n

 <\/p>\n

 <\/td>\n

peptic ulcer<\/td>\nProvision of symptomatic treatment, no comprehensive approach in treatment, the Government\u2019s failure to provide documentary evidence proving that the prescribed medication has been administered<\/p>\n

 <\/p>\n

18\/01\/2008 to 26\/12\/2013<\/p>\n

5 years, 11 months and 9 days<\/td>\n

Art. 34 – hindrance in the exercise of the right of individual petition<\/p>\n

– domestic court\u2019s refusal to provide the applicant with copies of the documents from his case file after the proceedings against him had been completed (Vasiliy Ivashchenko v. Ukraine<\/em>, no.\u00a0760\/03, \u00a7\u00a7 103-10, 26 July 2012)<\/td>\n

7,500<\/td>\n<\/tr>\n
5.<\/td>\n29273\/10<\/p>\n

28\/05\/2010<\/td>\n

Yevgeniy Anatolyevich Levchenko<\/strong><\/p>\n

11\/03\/1974<\/td>\n

Oleg Igorovych Veremiyenko<\/p>\n

Kyiv<\/td>\n

HIV\/AIDS, Tuberculosis<\/td>\nlacking\/delayed drug therapy for chronic tuberculosis which aggravated and transformed into a multi-drug resistant form; lacking\/delayed drug therapy for stage III HIV<\/p>\n

 <\/p>\n

16\/03\/2010 to 26\/11\/2011<\/p>\n

1 year, 8 months and 11 days<\/td>\n

Art. 3 – inadequate conditions of detention:<\/p>\n

 <\/p>\n

Mariupol SIZO,<\/p>\n

17\/08\/2009 to 22\/01\/2011<\/p>\n

1 year, 5 months and 6 days<\/p>\n

 <\/p>\n

overcrowding (2 m\u00b2),<\/p>\n

lack of or insufficient quantity of food<\/td>\n

9,750<\/td>\n<\/tr>\n
6.<\/td>\n38721\/10<\/p>\n

02\/07\/2010<\/td>\n

Ruslan Petrovych Drygin<\/strong><\/p>\n

27\/12\/1981<\/td>\n

Andriy Anatoliyovych Kristenko<\/p>\n

Kharkiv<\/td>\n

consolidated ankle fracture<\/td>\nlacking\/delayed surgery, lack of\/delay in consultation by a specialist<\/p>\n

 <\/p>\n

01\/01\/2010 to 17\/01\/2011<\/p>\n

1 year and 17 days<\/td>\n

Art. 5 (3) – excessive length of pre-trial detention:<\/p>\n

 <\/p>\n

29\/01\/2009 to 17\/01\/2011<\/p>\n

1 year, 11 months, and 18 days<\/p>\n

 <\/p>\n

Art. 13 – lack of any effective remedy in domestic law for the complaint of inadequate medical treatment in prison<\/td>\n

9,750<\/td>\n<\/tr>\n
7.<\/td>\n54570\/16<\/p>\n

19\/09\/2016<\/td>\n

Ivan Sergiyovych Zhukov<\/strong><\/p>\n

30\/01\/1984<\/td>\n

Vasyl Ivanovych Melnychuk<\/p>\n

Kyiv<\/td>\n

Kidney disease<\/td>\ndelay in surgery<\/p>\n

 <\/p>\n

05\/09\/2013 to 27\/09\/2016<\/p>\n

3 years and 23 days<\/td>\n

<\/td>\n7,500<\/td>\n<\/tr>\n
8.<\/td>\n157\/18<\/p>\n

26\/12\/2017<\/td>\n

Stanislav Fedorovych Denysyuk<\/strong><\/p>\n

14\/01\/1958<\/td>\n

Anton Mykolayovych Bashlovka<\/p>\n

Kyiv<\/td>\n

Heart condition, bronchial diseases<\/td>\nlack of\/delay in consultation by a\u00a0specialist, lack of\/delay in medical examination, lack of\/delay in medical testing, lacking\/delayed drug therapy<\/p>\n

 <\/p>\n

08\/06\/2017 to 22\/05\/2018<\/p>\n

11 months and 15 days<\/td>\n

<\/td>\n0<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[1]<\/a>.\u00a0\u00a0Plus any tax that may be chargeable to the applicants.<\/p>\n